Crema v Abigroup Contractors Pty Ltd
[2012] FWA 5322
•26 JUNE 2012
Note: An appeal pursuant to s.604 (C2012/4569) was lodged against this decision - refer to Full Bench decision dated 2 October 2012 [[2012] FWAFB 8453] for result of appeal.
[2012] FWA 5322 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Crema
v
Abigroup Contractors Pty Ltd
(U2011/4986)
Mr Paul Edwards
v
Abigroup Contractors Pty Ltd
(U2011/4988)
Ms Christine Comley
v
Abigroup Contractors Pty Ltd
(U2011/4991)
Mr Ray Allan
v
Abigroup Contractors Pty Ltd
(U2011/4993)
COMMISSIONER CRIBB | MELBOURNE, 26 JUNE 2012 |
Application for unfair dismissal remedy.
[1] This decision concerns applications by Mr John Crema, Mr Ray Allan, Mr Paul Edwards and Ms Christina Comley (the applicants) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged by each of the applicants that the termination of their employment by Abigroup Contractors Pty Ltd (the respondent) (Abigroup) was harsh, unjust or unreasonable. All of the applicants, except for one, are seeking a remedy in regard to their dismissals.
[2] A conciliation conference with respect to the four applications was held on 15 March 2011 but the applications were not settled.
[3] Abigroup raised a jurisdictional objection on the grounds that each of the terminations was a “genuine redundancy”. The jurisdictional objection was heard as part of the hearing regarding the substantive merits of the applications. Hearings took place on 5, 6, 7 and 8 July 2011.
[4] Mr M Sayers, of Counsel, represented each of the applicants whilst the respondent was represented with respect to each of the applications by Mr S Wood, of Counsel.
[5] Evidence was given by Mr Crema, Mr Allan, Mr Edwards and Ms Comley. For the respondent, Mr W Hanby, Human Resources Manager, Southern Region; Mr J Hanrahan, National Industrial Relations Manager and Mr K Stevens, Operations Manager Building – Southern Region gave evidence.
THE EVIDENCE
APPLICANTS
Mr Crema
[6] Mr Crema provided a written witness statement 1 and also gave oral evidence.
[7] It was Mr Crema’s evidence that, prior to his employment with Abigroup, he was a site boilermaker and was involved in putting multi-storey buildings up. With Abigroup, he said that he did traffic management, concreting and labouring work eg. drilling holes, welding. He recalled that, prior to commencing with Abigroup on 13 January 2009, he had worked for them previously about four years ago. 2
[8] When he started on 14 January 2009, it had been at the beginning of the Cardinia Primary School project. 3 As a labourer, his role was to keep the site clean - to make sure all the barricades were up; keep a check on the trucks going in and out; clean the road all the time and pump the dam out. Mr Crema also said that he installed all the sheds and did the roof and poured the concrete for the sheds. He stated that he was one of the last to leave that job and he moved to the Cranbourne East Primary and Secondary School (Cranbourne East) project where he remained until his termination.4
[9] At Cranbourne East, Mr Crema recalled that he had to keep the barricades up and had to de-water a lot across the 15/16 hectare site. He obtained his roller ticket so he could roll the road as the trucks going in and out all the time were damaging the road. The trucks included semis and extendable semis. He said that he also did basically everything that a labourer does. 5
[10] As he was boilermaker by trade, Mr Crema explained that he had to go back into boilermaking after his employment was terminated with Abigroup. He said that he now works in a factory (started the week before Easter) but does not get RDOs, site allowance or travelling. He commenced on $25 an hour but a couple of weeks ago, his rate was increased to $28 an hour. 6 Prior to commencing in this role, he undertook eight days of casual work (at $32 an hour) for another welding company.7 It was stated that, prior to his dismissal, his gross hourly rate was $29.22 plus $2.85 per hour site allowance. He stated that he also performed regular weekly overtime and indicated that his total hours per week were 58, 40 of which were ordinary hours. Ten hours of the overtime were paid at time and a half and the remainder at double time. In addition, he received $30.95 per day travel allowance which amounted to about $186 over 6 days.8
[11] It was Mr Crema’s evidence that there was no indication that Abigroup was considering redundancies or had a lack of work. 9 He said that there was no consultation or discussion about the redundancy.10
[12] In his witness statement, Mr Crema indicated that he started with Abigroup as a peggy/labourer and that he had performed general maintenance tasks as required. It was said that, as a peggy, his duties were to perform general cleaning and housekeeping tasks, particularly around the site sheds and amenities. 11
[13] On 28 January 2011, Mr Stevens and Mr Hanby had informed him that he was being put off for lack of work. It was recounted that he had asked Mr Stevens as to why he was chosen as there was not a lack of work because there were plenty of big jobs coming up. Mr Stevens had repeated that there was a lack of work. He had responded that, even if there was a lack of work, he should not be the one who was sacked. 12
[14] Mr Crema recalled asking about the Australian Catholic University (ACU) job at Atherton Gardens. He said that he had been told prior to Christmas that that job was going to need at least 9 labourers and that he would be fine. Mr Stevens’ response was that they are just starting off there and they do not need labourers just yet. He had then requested if he could take his accrued annual leave until they needed labourers. Mr Stevens had replied that Abigroup does not do that. 13
[15] It was stated by Mr Crema that he had advised Mr Stevens that he had already arranged for a month off in April. Mr Stevens’ response was that that was not his problem. It was also indicated that, a week before he was sacked, he was offered a job but had turned it down in the belief (as indicated to him by a Cranbourne East foreman) that he had ongoing work with Abigroup. 14
[16] The Cranbourne East foreman was said to have called him on 28 January 2011 to ask him to come to a job on Phillip Island as there were 2 to 3 weeks work. It was stated that he had responded that he could not as he had just been sacked due to a shortage of work. 15
[17] At the time of his dismissal, he was 54 years old and he stated that it had been incredibly difficult finding alternative work. His wife had just had a baby two months earlier and he also has a seven-year-old son. 16
Mr Allan
[18] Mr Allan provided a written witness statement 17 and also gave oral evidence. He commenced employment in August 2007 and had previously worked for Abigroup from 2003 to 2006.18 He was employed on the Mernda Primary School (Mernda) project.
[19] With respect to employment since his termination, it was Mr Allan’s evidence that he had worked for a Queensland construction company for 14 days and had been paid $22.50 per hour flat rate. As of about 10 days ago (27 June 2011), he stated that he had started to work full time as a plasterer’s labourer. He said that his pay rate was $22 per hour. Since commencing in this position, he had worked 6 hours overtime on a Saturday. 19
[20] In the period between 28 January 2011 and 27 June 2011, Mr Allan explained that he had been to 6 agencies looking for work and would have made 40 phone calls in that period arising from newspaper advertisements. As he was not computer literate, his wife had been looking for work for him on the Internet and that was how he found the 14 days employment. 20
[21] It was stated by Mr Allan that he had lost his licence 15 years ago and had not driven since then. However, he had retained his forklift licence. He said that he had driven a forklift and operated a scissor during his employment with Abigroup. 21
[22] In his written witness statement, Mr Allan said that he started as a labourer/peggy at Abigroup but that he had also performed traffic control and other general maintenance tasks as required. As a peggy, it was recounted that his duties were to perform general cleaning and housekeeping tasks, particularly around the site sheds and amenities. 22
[23] Mr Allan’s witness statement indicated that, on 28 January 2011, he heard that three people had been sacked on the Cranbourne East project. 23 He recalled that he was not worried about his own job as he had been told by many that he “wasn't going anywhere”.24 In addition, since November 2010, Mr Stevens and others had been saying that everyone was okay as there was work coming up.25 It was stated that there was no indication that Abigroup was considering redundancies or had a lack of work.26
[24] It was recounted that, on 28 January 2011, Mr Stevens and Mr Hanby told him that he was being put off for lack of work. It was stated that, at 58 years of age, it will be very difficult to find work. 27
Ms Comley
[25] Ms Comley provided a written witness statement 28 and also gave oral evidence. She commenced with Abigroup on 23 March 200929 and her last job was on the Cranbourne East project.30
[26] It was explained by Ms Comley that she had not found any other work since her dismissal. 31 She said that the only income she had received was her Incolink. This was in the form of two payments totalling close to $7000 which was subject to taxation as income.32
[27] Ms Comley confirmed that, prior to commencing with Abigroup in March 2009, she was working as an employee of a contractor to Abigroup. She also said that, between 2005 and 2007, she was working with another contractor as a cleaner. 33
[28] It was agreed by Ms Comley that she took a mixture of annual leave and leave without pay from Monday, 8 November 2010 to Tuesday, 11 January 2011. 34
[29] In her witness statement, Ms Comley stated that she started as a peggy and that, during her employment, she performed general maintenance tasks, traffic management when necessary and other labouring as required. As a peggy, her duties were to perform general cleaning and housekeeping tasks, particularly around the site sheds and amenities. 35
[30] There was no indication that the respondent was considering redundancies or had a lack of work. 36 It was recounted that, on 28 January 2011, Mr Stevens and Mr Hanby told her that she was being put off for lack of work. She was also said to have been told by Mr Stevens that they would let her know if they needed her again as he had heard from others that she does a good job.37
[31] Ms Comley statement indicated that Mr Moore had told them numerous times during October and November 2010 that there was plenty of work on and that they would be okay. She and the others would frequently ask and discuss what work was coming up. The answer from the production manager and the site manager of the Cranbourne East job was always that there is plenty of work. It was stated that they had specifically mentioned the Australian Catholic University job and also if they won the work proposed at Camberwell. 38
[32] It was recounted that no one had ever told her that the work was drying up or that there would be a possibility that they couldn't find work for her in the near future. 39 She stated that, being female and 55 years old, made it especially difficult to find work, particularly the type of work that she was doing and at that rate of pay. It was said that she had planned to buy a home in 2011 and that she is now living off the money that she had saved as a deposit.40
Mr Edwards
[33] Mr Edwards provided a written witness statement 41 and also gave oral evidence. He first commenced employment with the respondent in about 2002 and worked on numerous projects until December 2007 when he resigned. He was offered a new position in about February 2008 and started as a labourer. He also performed duties as an occupational health and safety representative or as an elected employee representative. He performed both these roles on the Cranbourne East project (beginning in September 2009) which was the last job that he was on.42
[34] Mr Edwards confirmed that, in continuing to pursue his application, he was only seeking a finding that the termination was unfair and that he did not seek any remedy. 43
[35] It was agreed by Mr Edwards that 20 of the 21 projects he had listed in his witness statement 44 were the same as 20 of the 21 projects listed under the Building the Education Revolution (BER) package 44.45
[36] Mr Edwards confirmed that he had taken a combination of long service leave and annual leave from Monday, 8 November 2010 to Tuesday, 11 January 2011. 46
[37] In his witness statement, Mr Edwards indicated that, prior to his dismissal, there was no indication that Abigroup was considering redundancies or had a lack of work. In November 2010, he was elected to the respondent's Victorian Consultative Committee and stated that the Committee was not informed of any plans for redundancies. 47 It was said that, when he went on leave for Christmas 2010, he thought he would be transferred to another site in the New Year as he knew that Abigroup had new and existing projects requiring labour within the classifications he was qualified to fill.48
[38] On 28 January 2011, Mr Edwards was called to a meeting where Mr Stevens and Mr Hanby told him that they had no work and that he was being put off. He responded that there was not a lack of work as there were plenty of big jobs coming up. Mr Stevens had repeated that there was a lack of work and was handed a pre-prepared letter. 49
RESPONDENT
Mr Hanrahan
[39] Mr Hanrahan provided a witness statement 50 and gave oral evidence. He commenced in the position of National Industrial Relations Manager in January 2011.51 He confirmed that he has responsibility for providing industrial relations advice to the Building and Engineering divisions in the Southern Region of Abigroup.52
[40] Mr Hanrahan stated that, at the time of the applicants’ dismissals, the ultimate holding company was Bilfinger Burger SE, based in Germany. However, as of about 10 March 2011, the ultimate holding company changed to Lend Lease Corporation Limited. 53
[41] In his witness statement, Mr Hanrahan explained the corporate structure of the Abigroup Group of companies. The respondent in this matter (Abigroup Contractors Pty Ltd) is owned by Abigroup Ltd (the Abigroup Group) . The only other companies in the Abigroup Group which employs agreement covered employees such as labourers are Abigroup Mining Services Pty Ltd and Australian Precast Solutions Pty Ltd. Neither company employs building labourers and the latter does not have any employees in Victoria. 54
[42] As of 28 January 2011, Abigroup Ltd (the Abigroup Group) was said to be owned by Valemus Australia Pty Ltd which also owned Baulderstone Holdings Pty Ltd and Conneq Infrastructure Services (Holdings) Pty Ltd, the parent companies of the Baulderstone Group and Conneq Group respectively. The Abigroup group companies was stated to operate entirely separately from the Balderstone Group and the Conneq Group. There is no managerial coordination between the three groups nor are the ability to give directions to another group and each has its own board, CEO and management team. 55
[43] Mr Hanrahan's witness statement also outlined Mr Edwards’ Magistrates’ Court of Victoria proceedings against Abigroup. 56
Mr Stevens
[44] Mr Stevens provided a written witness statement 57 and gave oral evidence. He is currently Operations Manager Building – Southern Region and is responsible for the management and coordination of Abigroup’s building projects in the Southern Region.58
[45] It was explained by Mr Stevens that the first attachment to his witness statement represented a snap shot of the projects that have occurred from the end of the financial year of 2010/2011 and going through to the 2011/2012 financial year. He said that there were three main projects - the Building the Education Revolution (BER) - packages 9 and 44 and the Partnerships Victoria in Schools (PVIS). In addition, the respondent secured a couple of other projects in early 2011- the Australian Catholic University and the Department of Social Housing in Brunswick (Atherton Gardens). In late April 2011, Abigroup also secured stage 2 works at the Camberwell Civic Centre. 59
[46] Mr Stevens stated that Abigroup was not tendering for any further BER projects and he was not aware that there were any coming up in the market. 60 As at 6 July 2011, it was Mr Stevens’ evidence that there were no more BER projects becoming available. In terms of the PVIS, he said that there had been a second contract of 13 schools due to hit the market in October 2010 but the current State government has shelved it.61 With respect to other projects, Mr Stevens recounted that Abigroup was unfortunate in missing out on a few projects over the Christmas period and in early February 2011.
[47] Currently, the estimating department was said to not be pricing/tendering for anything and the market is quiet. The company was therefore just waiting for some tenders to come through the door. 62 Mr Stevens stated that the company is constantly searching for future work but that there is nothing definitively coming through the doors to price as a project at the moment.63 In terms of the approximately 40 people currently working on the BER package 44, he said that it was not looking good to maintain that number of people.64
[48] It was Mr Steven’s evidence that, throughout December 2010 and January 2011, he and Mr Hanby were working on their ability to maintain the employment of the four applicants and the other labourers who were ceasing on building projects, by placing them into other divisions. He explained that he advised the other business units working in the Southern Region that there were some people coming free and asked whether they could use them. He was then reliant on what feedback he then got from the other business units. It was agreed that it was appropriate for Abigroup to look at redeploying people coming off building jobs into the other divisions. He recalled that, during his discussions with Mr Hanby, he did ask those questions. The feedback was that, at that time in January 2011, there were not any redeployment opportunities. He also said that, on the night before the terminations occurred, he asked Mr Hanby again about feedback. Mr Stevens indicated that he did not make his own independent enquiries with the other divisions about what positions may be available. 65
[49] He agreed that he had been successful in redeploying Mr DeMarchi who was working on the Mernda project with Mr Allan. This was due to a resignation into which Mr DeMarchi was placed. It was stated that no similar opportunities had arisen for the four applicants. 66
[50] Mr Stevens stated that no one was placed ahead of the applicants in terms of priority. He explained that each particular project manager has his own team and the team would generally follow the project manager. He said that there was not an opportunity at the same time for Mr Allan who was coming off the Mernda project. 67
[51] It was indicated by Mr Stevens that he reported to the Southern Regional Building Manager, Mr Williams. He said that Mr Williams was aware of what has been going on and the lead up to these proceedings. It was recalled that he had had spoken to Mr Williams about the difficulty he was having in trying to find somewhere to place these employees. Mr Williams was said to have responded that it was a bit disappointing that we don’t have the work. Mr Stevens thought it most likely that he had discussed with Mr Williams the names of the employees being considered for dismissal. He confirmed that Mr Edwards would have been one of the names mentioned. 68
[52] It was stated that he and Mr Williams certainly explored the opportunities for redeployment within the Southern Region. Mr Stevens said that he did not recall a conversation about the selection of specific individuals. Rather, it was more about the way the company parcelled the jobs up and was therefore about who is slotted into which team. 69
[53] Mr Stevens explained that the way it worked was that a project manager takes over the job once the work is won. Each project manager has his own team which they manage. In a situation where a project manager might be finishing one job and about to start another one, the company does not make any money sort of stopping and carrying everyone. If a project manager is finishing one project and starting another project he would normally take his team with him. There are 4 to 6 project managers for each project, each with their own team (their own foremen, site managers and labourers/peggys). They just go where the project manager goes. If someone falls away, you top that team up. 70
[54] With respect to the applicants, three of them were on the Cranbourne East project and the other person was on the Mernda project. In the normal course of events, the applicants would have gone with their respective project managers. However, Mr Stevens stated that these two project managers had no new projects that they could take their teams to. He explained that they were not currently working as project managers. After finishing at Cranbourne East and Mernda respectively, one of two project managers wrapped up the bigger picture of the school - overarching and picking up the defects and close out issues with the client and the stakeholder. The other one is working in a different role within the business - as a site manager under another project manager. 71
[55] Mr Stevens confirmed that, if Mr Williams decided to overrule him, he would be bound to follow Mr Williams’ direction. He said that Mr Williams had the final say and that he would put a recommendation to him. The recommendation would then be challenged - whether he had gone through the protocols of checking with the other divisions etc. 72
[56] Mr Stevens confirmed that the Peninsula Link (PenLink) project was an Engineering division project and not directly within his sphere of influence. He confirmed that the comments in his witness statement 73 were about the projects that Mr Edwards had nominated in his witness statement. It was stated that he had not included any Engineering division projects in his statement and that his statement only concerned Building projects. Mr Stevens said that he had no involvement with the PenLink project. He therefore did not know whether or not there were any vacancies on the PenLink project.74
[57] With respect to Abigroup’s knowledge of employees’ skills and competencies, it was explained by Mr Stevens that a record of the skill sets that people have is kept. However, he did not refer to the skills matrix in terms of what they were doing in the Building division. Mr Stevens confirmed that, with respect to the four applicants, he did not have any concerns about their capacity, conduct or about any particular limitations or shortcomings. In terms of forming a view about the skills and competencies of the applicants, it was explained that he relied on the feedback from the site teams. It was said that, in the Building division, they employ labourers/peggys but that everything else was subcontracted out. 75
[58] The core skill of the labourers was described by Mr Stevens as generally being peggy work or some very light clean-up, drill a hole for a handrail or put a bit of concrete down. This was described as very basic. The peggy’s role was getting to the site amenities early, turning the water on, putting pie warmer on, turning the lights on, putting the air-conditioners on and maintaining the amenities. It was agreed that on occasion, peggys could be involved in dewatering but that operating plant and equipment would be very limited. This was because most of it is contacted out and Abigroup does not have its own forklifts, bobcats or any of that type of equipment in the Building division. Also on occasion, the peggy would do the traffic control or traffic management.
[59] In terms of the PVIS projects, it was explained that they were all greenfield sites and that the earthmoving, soil preparation, excavation etc was a subcontracted trade package which did not involve Abigroup employees. Mr Stevens indicated that Abigroup’s approach in the Building division is to trade package everything. He agreed that the first part of a building project requires some civil type preparatory work prior to the building construction commencing. He said that the four applicants would have observed this preparatory work and have been around the machinery but they would not have driven the equipment. 76
[60] With regard to the terms of the enterprise agreement, Mr Stevens stated that voluntary terminations were not encouraged because there is no direct requirement to do that. “Will be encouraged” was said to be different to “must do”. 77 In addition, it was explained that, practically, it would not have suited to call for voluntary redundancies.78 This was because, in mid January 2011, there were four labourers on leave and a number of other staff on leave as well. Therefore, the company would not have been talking to all of its direct employees when asking for voluntary redundancies.79
[61] Mr Stevens also said that he could not recall a project that he had worked on where calling for voluntary redundancies had actually occurred. In his statement, he had indicated that perhaps, if a call for voluntary redundancies was going to work, it might do so on a very large single project which was being downsized. The statement also noted that Mr Edwards had asked whether he could just be made redundant. It was conceded that some workers might volunteer to be made redundant. 80
[62] It was explained by Mr Stevens that the Consultative Committee was really to do with occupational health and safety matters and that there is no obligation for the company to use the Consultative Committee to discuss redundancies. He stated that the Consultative Committee was set up with the primary objective of occupational health and safety. 81 No discussions were had with any of the applicants, prior to the termination of their employment, about redeployment.82 This was said to be because there were no redeployment opportunities - “I did not have anywhere else to put them”.83 It was Mr Stevens’ recollection of his conversations with Mr Hanby that they would discuss that that they had four of their peggys/labourers that they had nowhere to put and that they were going to run out of work. He said that they did not win the Catholic Learning Centre (CLC) project and he did not know what else to do. The company carried these employees through the January 2011 period and also, in that time, Mr Hanby explored other elements of the business.84
[63] In his witness statement, Mr Stevens indicated that, during the financial year 2010/2011, the Southern Region Building division has had 54 projects on its books. 33 of those projects were completed by January 2011. This was largely due to the PVIS projects and several of the BER projects ending around Christmas 2010. Of the remaining 21 projects which were either active or anticipated at the end of January 2011, only 7 will remain active by the end of June 2011. 85
[64] With respect to the redeployment of labourers working on the PVIS and BER projects that were ending (late 2010/early 2011), Mr Stevens stated that, where he could, he allocated some labourers to other BER projects which were expected to be completed in April/May/June and July 2011. Others were allocated to the Australian Catholic University project. He had earmarked two projects which Abigroup had bid for and hoped to win (Atherton Gardens Department of Human Services social housing project and the Catholic Learning Centre - which it did not win) for redeployment opportunities. In addition, Abigroup did not win either of the two jobs that it had bid for in Ballarat. 86
[65] It was stated that, in about mid-December 2010, he had earmarked Mr Allan, Ms Comley, Mr Crema and Mr Edwards for redeployment to the CLC project as the projects they were currently employed on would be completed for the start of term 1, 2011. When it became known that Abigroup had not won the CLC project and, knowing that there were no other Building division projects to which they could be redeployed, he spoke again to Mr Hanby. Mr Hanby was asked to make enquiries with other divisions as to whether there were any labourer positions to which any of the applicants could be redeployed. He then followed up with Mr Hanby on a number of occasions in January 2011 as to whether there were any labourer vacancies in other divisions. The response was that there were no of vacancies. 87
Mr Hanby
[66] Mr Hanby provided a witness statement 88 and also gave oral evidence. He is Human Resources Manager, Southern Region covering both the Building and Engineering divisions. He reports to the General Manager for the Southern Region, Mr Vassallo who has overall responsibility for the Building division and also the Engineering division.89
[67] It was confirmed that his role involved providing advice to managers about their responsibilities under the Agreement and the Award in relation to terminations of employment. With respect to the four applicants, Mr Hanby stated that he got advice from Mr Hanrahan. 90 It was confirmed that there was no consultation either with the union or with any of the individuals concerned. This was on the basis that he understood that there was no requirement for the company to consult.91 It was stated that he was not aware, at that time, that Mr Edwards was an occupational health and safety representative. He was aware that Mr Edwards was an employee representative. Mr Hanby indicated that he had treated Mr Edwards’ dismissal as part of a general round of redundancies.92
[68] Mr Hanby agreed that he had a discussion with Mr Williams (Mr Stevens’ Manager) in relation to the terminations. He stated that Mr Williams was aware of what was going on and was involved in the decision-making process to a degree. It was indicated that, having worked with Mr Williams’, Mr Stevens and others, he had formed the view that there were no vacancies within the Building division. He had then sought to cast a wider net - to the Engineering division - but even wider than that, he made enquiries with other divisions. 93
[69] With respect to his dealings with the Engineering division, it was explained that the PenLink project had their own human resources person (Mr Currie), even though his responsibilities included the Engineering division. It was stated that Mr Currie reported to the Director of the project (Mr Chambers) but has a “dotted line” to him (Mr Hanby). 94 This was said to mean in practice that he does not tell Mr Currie what to do. Rather, he works as a bit of a mentor/coach for him. If he suggested something to Mr Currie, it was a suggestion but it was normally something that was at least listened to or followed. He does not have a pure directive power over Mr Currie. Mr Chambers has the power to direct Mr Currie as does Mr Vassallo.95
[70] Mr Hanby explained that he had exerted a reasonable amount of pressure on Mr Currie and was putting him under a bit of an acid test to make sure that Abigroup had done everything that it could to find new roles for the applicants. Mr Currie's response was that he did not believe that there were suitable vacancies for the four employees concerned. Mr Hanby said that he did not explore Mr Currie's response in detail but indicated that he had previously asked Mr Currie to also consider opportunities where the applicants may be able to acquire some extra skills. It was recalled that, in his discussions with Mr Currie, he was helpful and was doing what his job was. He agreed that, ultimately, he was reliant on Mr Currie giving him an honest assessment about the four applicants' suitability and also Mr Currie having dialogue with the operations of people on the PenLink project. 96 He said that, at that time, Mr Currie was much more competent in being able to do this than himself, given that Mr Currie had been a project HR person and has had a number of years, not just on that project, but in the civil game.97 It was his understanding that Mr Currie did not know the applicants and would not have observed them in their roles.98
[71] It was confirmed by Mr Hanby that he had a number of discussions with Mr Currie throughout December 2010 and January 2011. It was stated that he met with Mr Currie on a weekly basis but that there were also other meetings where the redeployment issue was raised. He recalled that the discussions became much more specific in January 2011. As well, he had said to Mr Currie in January 2011 that he expected him to come back to him formally by a particular time and confirmed that they either do not have vacancies or do not have suitable vacancies. 99 Mr Hanby said that he thought that he was aware that there were vacancies for labourers that were being filled on PenLink but he could not say 100%. It was explained that he had flagged to Mr Currie in December 2010 that he was looking to place the four applicants and that there was broader dialogue around the week of 17 January 2011. He stated that Mr Currie knew whom he was trying to redeploy.100
[72] Mr Hanby said that the week before 17 January 2011, he had spoken with Mr Williams who made it clear that Abigroup had not won the CLC job and that things were not looking good. They had not discussed the potential redundancies in detail and was unsure as to whether Mr Williams had identified who the four were. It was recalled that, on 17 January 2011, when Mr Stevens came back to work, he came and saw him. Mr Stevens had said that, unless something drastic happens, it looks like we may have to finish up the applicants. Mr Hanby explained that, prior to the week of 10 January 2011, there had been discussion about the potential need for redundancies. However, the talk about letting people go definitely became much stronger in the week of 10 January 2011 which was confirmed on 17 January 2011 after his discussion with Mr Stevens. 101
[73] It was explained by Mr Hanby that, in the lead up to Christmas 2010, he and Mr Stevens had discussed a “bottleneck” that was potentially emerging in finding work for labourers. This was because a number of BER and PVIS projects were coming to an end. It was recalled that Mr Stevens was hopeful of finding them work on new projects he was hoping to win (CLC project) but seemed to be getting a little nervous. 102 In January 2011, Mr Hanby recounted that Mr Stevens tried to, but could not, find work for the applicants within the Building division as there were no vacancies for labourers/peggys on any of the other projects.He had then explored whether it would be possible to redeploy these employees in other divisions.103 Following a number of discussions with the HR person in the Telco and Energy division, it became clear that there were no labourer vacancies.104 Similarly, Ms Bailey was said to have explored redeployment options for the applicants in the Rail division but there were no vacancies for labourers in January 2011.105
[74] Ms Bailey, from Human Resources, was said to have then accessed the applicants’ files in order to gain an understanding of the skills that they had and where they might be suitable. Mr Hanby had the opportunity to review the files but he did not go through them in great detail as this was Ms Bailey's job. He said that Ms Bailey would also have spoken to Mr Stevens to gain a more detailed understanding of the work they had been doing, their skills (work history) and what sort of roles they would be suitable for. 106 It was stated that there was dialogue between Ms Bailey and Mr Currie and also with Ms Gregson, another HR person on the Peninsula Link project. The discussions concerned the sorts of roles that the four applicants had had and what experience they had.107 The applicants’ work history, as developed through discussions between Ms Bailey and Mr Stevens, was taken into account. There was no opportunity provided to the employees concerned to have an input into the development of their work histories.108
[75] It was stated that it was Mr Stevens who formed the view that he did not have a requirement for the applicants within the Building area. It then became a matter of finding if there were any other vacancies or suitable vacancies prior to a final absolute decision being made. Mr Hanby agreed that, from about 17 January 2011 onwards, things were not looking too good for the applicants. At some stage, he went back to Mr Williams to provide an update on his attempts to redeploy the applicants and indicated that his discussions with Mr Williams were ongoing. He said that he did not recall Mr Williams giving him any directions on how to go about the redeployments and that he was not second-guessing what he and Mr Stevens were doing. Mr Hanby stated that Mr Williams was aware that the four employees were being made redundant. However, it was recalled that the bulk of the dialogue was with Mr Stevens. 109 It was stated that, after he and Mr Stevens had communicated the redundancies to the four employees, they had reported back to Mr Williams that the task had been completed.110
[76] Mr Hanby explained that, even if there were vacancies for labourers in the Engineering division, Abigroup does not often transfer labourers between the Building and Engineering divisions because of the different skill sets and equipment between building sites and civil construction sites. 111 He stated that there was not a pool of labourers that bounced between the Building and Engineering areas. He said that it can happen so and that he believed it has happened. It was indicated that there is no policy that says you will not transfer people between the divisions.112 It was also said to be his understanding that there was a lot of pressure to get the PenLink project built as it was behind. He said that a small number of the employees who were brought onto the project had undertaken a 10 week training course and had then required supervision and support to perform their roles.113
[77] Mr Hanby conceded that there were vacancies for labourers on the PenLink project during December 2010 and January 2011. 114 It was recounted that there was no offer of training made to the applicants nor a discussion with them that the company was considering redundancy and would they consider the possibility of something at PenLink. To his knowledge, it was not put to any of the four employees that there were labourer vacancies at PenLink. He said that ultimately, the HR manager on the PenLink project, with advice and support from the operational people, formed the view that there were not suitable roles there for the four employees.115
[78] As to why the four employees were not suitable, Mr Hanby indicated that Mr Currie, who made the decision, would need to answer that question. He said that he was not given a reason as to why they were not suitable and he did not go through each employee line by line. It was stated that he had not cross-examined Mr Currie but had simply put pressure on him to be clear that there weren't any appropriate roles for the employees concerned. 116 Mr Hanby indicated that none of this was communicated to the employees at the time they were dismissed. Neither was there an opportunity provided to the applicants to talk to anybody about how their skills were perceived or assessed.117
[79] With respect to the two skills matrices, 118 it was Mr Hanby’s evidence that Ms Bailey had undertaken the skills matrix for the four applicants and that the other matrix had been put together by Ms Gregson. Both matrices had been completed with input from the relevant operations people.119
[80] It was stated by Mr Hanby that, in the circumstances of this case, he felt that it was appropriate to proceed without any consultation. It was his view that consultation was sometimes desirable but sometimes not desirable.
SUBMISSIONS
APPLICANTS
[81] Mr Sayers submitted that it was clear that the applicants were dismissed and that it was not in dispute that the Small Business Code does not apply. 120 The issue in dispute with respect to the four applications was whether or not these were cases of genuine redundancy.121 As the respondent has moved a jurisdictional objection asserting that the dismissals in each case were genuine redundancies, it was necessary for the Tribunal to determine that matter, prior to turning its mind to whether the dismissals were harsh, unjust or reasonable.122 Having so moved, the evidentiary onus was therefore on the respondent to satisfy the Tribunal that each case was one of genuine redundancy.123 The Tribunal was referred to the decision in Abdalla v Viewdaze Pty Ltd (Abdalla).124
[82] With respect to the jurisdictional objection, it was stated that it was accepted by the applicants that the particular projects that they were on were coming to a close at the time of the dismissals. However, there were other positions within the enterprise that they could have been redeployed to. Therefore, Mr Sayers indicated that it is not accepted by the applicants that their positions as labourers were no longer required by the respondent. 125 It was stated that 16 new labourers were employed by Abigroup at around the time of the terminations. Further, at the time of their dismissal, Mr Allan and Ms Comley were performing a peggy function. However, all four of the applicants were employed and paid as labourers and were classified as such on their payslips.126
[83] Mr Sayers explained that a peggy is a function but is not the limit of their role. They perform, as required, other general labouring functions. All of the applicants had the requisite skills and qualifications to be properly considered for the new positions at the PenLink project. 127 If there were any deficiencies in their training, some very minor remedial training only would be required to enable them to step into the roles that were available on the PenLink site.128
[84] It was submitted that the respondent’s case, at no stage prior to the commencement of the hearing, asserted that the applicants lacked the necessary skills and competencies to enable them to be redeployed to what were clearly vacant labourer positions on the PenLink project that were being filled around the same time. 129 Mr Sayers argued that, it was now clear, that the scope of the applicants’ skills and the nature of their duties were factors in the ultimate decision to terminate their employment. It was contended that neither Mr Crema, Mr Allan nor Ms Comley confined themselves to the description of peggy duties. Rather, they referred to themselves as peggys/labourers. In his statement, Mr Crema said that he also performed general maintenance tasks as required. Further, Mr Edwards was substantially a labourer but he also performed representative duties. Ms Comley’s evidence was said to be that she had performed general maintenance tasks and traffic management and other labouring as required.130
[85] Mr Sayers argued that the respondent had failed to produce sufficient evidence to satisfy the Tribunal that the applicants, engaged in one part of the enterprise, were not able to fill vacancies for the minimum labourer classification, in another part of the business either immediately or within a period of reasonable support and training. Mr Hanby's evidence was noted where at least four of these vacancies were filled by students coming out of a 10 week course who then required some support and supervision. It was not accepted that the applicants would have required any significant additional training or any additional training or supervision. 131
[86] It was stated by Mr Sayers that it is an important matter that the applicants in this case all have some significant experience. This ranged from two years in Ms Comley’s case to more than that for the other applicants. The applicants contended that, it was clear from the evidence that, in the preparation of building sites, significant civil type work was performed. It was stated that, therefore, the applicants were experienced in relation to that work, having been exposed to it and the associated hazards. It was acknowledged that a civil site was on a different scale and dimension (larger) but comparable to the early stages of a building construction site. 132
[87] With respect to the respondent's criticisms that the applications were speculative, the Tribunal was referred to the observations of the Full Bench in the Cruikshank v Priceline Pty Ltd (Priceline) appeal. 133
[88] Mr Sayers submitted that nowhere in the materials filed by the respondent is there are any recognition that there were labourer vacancies on PenLink that were being filled during the relevant period. Mr Hanby’s statement was referred to and it was said that it was not clear from reading it that there were vacancies in fact being filled at the time. Further, Mr Stevens’ statement asserts that there were simply no vacancies. Had it not been for the applicants pressing for further material, it would not have been known that there were in fact 16 CW1 (labourer) positions being filled during December 2010 and January 2011. This was said to have been against a backdrop of discussions and consideration of potential redundancies occurring at the same time. 134
Genuine redundancy
[89] With respect to section 389(1)(a), it was said to be clear on the evidence that the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements. It was not disputed that there were changes in the operational requirements of the enterprise. However, it was argued that there was no demonstrated ‘overall reduction’ as set out in the Full Bench decision in Ulan Coal Mines Limited v Henry Jon Howarth and others (Ulan case). 135 It was noted that, apart from the four applicants, there was only one other labourer terminated during the relevant period. This was an employee who worked at the respondent’s depot and who was regulated by a different Enterprise Agreement. However, it was accepted that there was another termination during the relevant period.136
[90] If this other employee is included, there were then five labourers who were made redundant against 16 labourers being employed on the PenLink project. This was said to be contrary to the Ulan case which requires an “overall reduction” as there was a net increase in labourers being employed into the enterprise. This was said to be even if the enterprise is limited to just the Building and Engineering divisions of the southern region. It was stated that there was in fact an increase in the employment or need for labourers during that period. It was submitted that the respondent, therefore, required the applicants’ labourer jobs to be performed. Therefore, it could not be a case of genuine redundancies. 137
[91] With regard to section 389(1)(b), it was submitted that the Tribunal must be satisfied that any obligations in the relevant agreement to consult about the redundancy were complied with. In this case, this means whether or not the respondent had an obligation to consult about redundancy. It is not disputed by the respondent that they did not consult. 138 Therefore, it was argued that the only question to be determined is whether or not there was an obligation to consult.139 The Tribunal was referred to clause 18 of the Agreement. It was stated that clause 18.1 was not in dispute between the parties.140
[92] With respect to clause 18.3 of the Agreement, it was argued that it embodied within it an obligation on the part of the respondent to consult about redundancies. Mr Sayers contended that this clause was not capable of any other practical interpretation. He argued that the fact of impending redundancies needs to be, at a minimum, communicated to workers within the relevant classification or affected area. A call would need to be put out to invite people to accept a voluntary termination. 141 Such a process was said to have an effect, or potentially have an effect, on the outcome of the process. It was not simply a matter of just ticking off the boxes but rather something that would be put to the workforce inviting responses on the understanding that the responses would need to be considered by the employer. This may well ultimately affect the decision as to how many and who would be made redundant or whether, in fact, if redundancies needed to occur.142
[93] It was the applicants’ strong submission that there was in fact such an obligation, that it was not complied with and that, as a result, the respondent cannot seek to rely on s.389(1)(b) for assistance in arguing that the redundancies were genuine. The Tribunal was referred to the case of Senol Kaysal v DBM Handrails Pty Ltd 143 where Commissioner Blair was said to have considered an identical clause in an agreement to the one in this case. It was stated that it was clear from the decision that there was a finding to the effect that clause 18.3 amounts to an obligation to consult and that the employer in that case had not consulted and could therefore not rely on s.389(1)(b).144
[94] With respect to the respondent’s submissions regarding the meaning of consultation, Mr Sayers submitted that, when each of the objectives identified is closely examined within the context of the Agreement, the clause does amount to an obligation to consult about redundancies. Firstly, it was argued that voluntary terminations could not be encouraged unless the employees were involved. By offering voluntary redundancies, this was said to notify employees that redundancies may be necessary and it triggers a process whereby employees need to make a decision about whether or not to volunteer. Therefore, it opened up a process of dialogue regarding the proposed or considered redundancies. 145
[95] In terms of the third objective of a bona fide opportunity to influence, Mr Sayers contended that the fact of the employee having to decide whether to volunteer or not meets this objective. It was not disputed that it was the company’s prerogative to determine the order of selection of employees for retrenchment. However, the offering of voluntary redundancies presented employees with an opportunity to put material or suggestions to the company which in turn creates a set of circumstances that has a potential significant influence on the ultimate outcome. 146
[96] Finally, it was submitted that the fourth objective of providing a meaningful opportunity to participate has been met. 147
[97] Mr Sayers submitted that there was no consultation by Abigroup whatsoever - not only were none of the applicants consulted but neither were any of the other labourers within the enterprise. It was stated that the employer's obligation under the Agreement has not been met. 148 He said that this issue really turns on the question of whether or not “voluntary termination will be encouraged as a first step” amounts, in this case, to an obligation to consult about the redundancies. It was indicated that there is an obligation in the Agreement to comply with that step in the Agreement. However, even if it has not been complied with, there is a separate question as to whether that particular obligation amounts to an obligation to consult about the redundancies within section 389 (1) (b) of the Act. Mr Sayers strongly argued that it does amount to such an obligation. If the Tribunal accepts that that obligation has not been met, it was contended that it is not open for the Tribunal to find that these were cases of genuine redundancy.149
Section 398(2)(a) - redeployment
[98] It was submitted by the applicants that, also, these were not genuine redundancies as it would have been reasonable in all of the circumstances for them to have been redeployed within the enterprise. 150 Mr Sayers stated that there was scope for the applicants to be redeployed and that they were well regarded by the respondent. It was argued that an organisation the size of Abigroup could have provided reasonable retraining or training generally to assist the applicants to transition to another role within the enterprise.151
[99] Mr Sayers stated that the relevant “enterprise” in this case is the Building division and the Engineering division, Southern Region. It was argued that the Tribunal could not be satisfied that it was not reasonable to redeploy the applicants. 152 In this regard, it was argued that Mr Williams was the decision maker in that he had the final say and that he should have been called to give evidence. It would appear from the evidence that the decision was taken within the Building division with some dialogue with the Engineering division. The applicants contended that Mr Vassallo, who was not called to give evidence, had responsibility for both the Building and Engineering divisions.153
[100] Further, it was argued that Mr Stevens delegated the function of seeking reasonable redeployment opportunities to Mr Hanby who then deferred to others in determining whether there might be suitable vacancies or reasonable redeployment opportunities within other divisions. These others included Ms Bailey, Ms Gregson and Mr Currie, none of whom were called to give evidence. It is alleged that these three people undertook some sort of assessment of the skills and competencies of the applicants. However, it was said that it was clear from the evidence that nothing was put to any of the applicants to suggest that there were vacancies on the PenLink project or that there was any consideration of their skills and competencies. Thirdly, there was no enquiry as to whether they might be interested if deemed suitable. 154
[101] Accordingly, it was argued that Mr Currie’s role was critical in that he, independently of Mr Hanby, formed a view which he communicated to Mr Hanby. Mr Hanby, in turn, accepted that view and communicated it to Mr Stevens with the result that that view was ultimately implemented. The Tribunal was again referred to the Full Bench decision in Priceline and it was submitted that there was a glaring lack of evidence presented by the respondent in accordance with this decision. The ultimate senior decision maker, Mr Williams, was not called and neither was Mr Currie who made a very important assessment and decision which was then relied upon ultimately by Mr Williams. Further, with respect to the two skills matrixes 155 tendered by the respondent, it was argued that there was no evidence as to their creation and as to whether a similar matrix was assessed at the time the decision was made. Accordingly, no weight should be given to these documents.156
[102] In addition, Mr Sayers highlighted the commentary in the second Ulan Coal Full Bench decision which stated that the hypothetical question posed in s.389(2)(a) must be answered by the respondent by reference to all of the relevant circumstances and that the redeployment opportunity must be suitable. 157 It was not accepted that the applicants did not possess the required skills and competencies. However, it was said that, if there was a deficiency, it would have been one that could have been corrected by some period of retraining. This should be considered in light of Mr Hanby’s evidence that some of these successful applicants for the PenLink project undertook a 10 week training course and were then given training and support on the job.158
Harsh, unjust or unreasonable
[103] If the Tribunal dismissed the employer's jurisdictional objection, it was argued that sections 387(a) to (g) are not relevant in the particular circumstances of this matter. 159 However, for completeness, it was stated that conduct and capacity are not in issue, that the employer is a significant and well resourced employer with an elaborate Human Resources structure.160 Therefore, in a practical sense, the Tribunal would be left to determining the matter based on any other matters that it considered to be relevant in these particular cases. The position as outlined in the Coal and Allied decision161 was referred to as meaning that all of the criteria in section 387(a) to (h) are relevant.162
[104] It was contended that the effect of the termination of the applicants was harsh given, amongst other things, their age, and economic and personal circumstances. 163 Further, Mr Sayers submitted that a relevant consideration was the fact that one of the applicants is a woman who was working in a male dominated industry. It was stated that the respondent recognises the importance of increasing the level of female participation in the industry.164 Further, it was argued that there was no resourcing, logistical or financial reason which prevented the respondent from consulting in relation to the impending redundancies. Therefore, it was said to be significant that such a major corporate citizen made an informed decision to advise the applicants that they were being dismissed rather than consulting with them about possible redundancies.165
Remedy
[105] With respect to remedy, it was indicated that Ms Comley, Mr Allan and Mr Crema are all seeking reinstatement, together with an order to maintain continuity and to restore all lost pay. Both Mr Allan and Mr Crema have secured alternative employment but they wish to return to Abigroup. It was stated that the alternative work was at an inferior level of remuneration to that they enjoyed with the respondent. However, Ms Comley does not have other work. Although she does have her Incolink earnings, she has no other earnings. 166
[106] In terms of the appropriateness of reinstatement, Mr Sayers contended that it is both possible and appropriate. Nothing had been identified to suggest that reinstating any of these three employees would cause any disruption. Further, despite the identification by Abigroup of a significant contraction of work in its Building division, it was not accepted that there was a contraction of work on the PenLink project in the Engineering division. It was stated that this is where they should have been redeployed. 167
[107] In the alternative, compensation on the basis of the Spriggs decision should be awarded to Ms Comley, Mr Allan and Mr Crema. 168 It was indicated that the payslips of the three employees who are seeking, in the alternative, compensation, had been tendered. In addition, there was evidence from these three applicants as to the post termination mitigation of their loss and earnings.169
[108] Both the applicants and the respondent were content for the parties to discuss remedy, in the event that the Tribunal found this way. 170
[109] With respect to Mr Edwards, he has secured other employment and will not be pressing for reinstatement or for compensation despite having suffered a significant loss of earnings. However, he is seeking a finding to the effect that his termination was harsh, unjust or unreasonable. 171
RESPONDENT
[110] Mr Wood submitted that these are plain vanilla redundancies in the sense that the jobs of each of the employees were no longer required because the projects on which they had been working had been completed. The schools had been built and the students were due to move into the schools the following week. There was no further work on either of the projects. 172 It was stated that it would be inconceivable to suggest that the requirements of section 389(1)(a) were not made out in relation to each of the jobs. The respondent submitted that this proposition was supported by the Full Bench in the first Ulan Coal case.173
[111] The Tribunal was taken through the history of the concept of a termination for operational requirements. It was said that, currently, it is just one of the elements that the applicants are required to prove. 174
[112] With respect to the issue as to which party bears the onus, it was stated that, technically, the applicants have the onus. The Tribunal was referred to the decision in Abdulla v Viewdaze Pty Ltd. 175 Mr Wood stated that the respondent was not going to take the point that the applicants have the onus. Rather, the respondent was content for the Tribunal to find that they have the onus of proving the matters in section 389.176
Job no longer required to be performed
[113] It was submitted that there are three matters for the Tribunal to determine. 177
[114] The first one is whether the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer's enterprise. It was stated that the changes in the operational requirements of the employer’s enterprise in the Building division was that there was no more work. The schools had been completed. This meant that the jobs that each of the applicants had been performing were no longer needed to be performed. 178 Various passages from the Ulan Coal decision179 were cited in support of the contention that the jobs of the applicants, who were working as peggys/occupational health and safety representative on projects, had finished because the projects had finished.180
[115] The respondent submitted that, in the Building division, Southern Region, the position regarding work was as follows:
- The BER (Building the Education Revolution) package 9 - the building of school halls at 26 schools. This work came to an end at the start of the 2011 school year except for Murrumbeena and Ripponlea. Some of these employees were made redundant and some were redeployed to the BER package 44. 181
- The BER package 44 - 21 projects - this work is scheduled to finish very shortly. There are about 40 staff, some labourers and some other staff. Each of these employees will be made redundant unless there is some other work which they can be redeployed to. 182 However, there were no redeployment opportunities at all
- The PVIS projects - the applicants, at the end, worked on these projects. There were 11 projects, six of which were being completed as at December 2010/January 2011 for the start of the school year. These projects were the building of whole schools. Mr Edwards, Ms Comley and Mr Crema were all engaged on the Cranbourne East school (PVIS 1260). This project had finished by 28 January 2011. There was no more work to do on it so far as Mr Edwards, Ms Comley and Mr Crema were concerned. 183
[116] Mr Wood argued that, as the school was being handed over for the start of the school year, there was no need for any further construction as the school had been built. Therefore, the jobs of Mr Edwards, Mr Crema and Ms Comley were not required to be performed at all. 184 Similarly, it was stated that the project that Mr Allan was working on - Mernda Primary School (PVIS 1300), the finish date was 17 December 2010 and, as at 28 January 2011, it was ready to be handed over to the school for start of the school year. Mr Allan's job was not required to be performed as the school had been built.185
Obligation to consult
[117] The second issue in question was said to be whether the employer had complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about redundancy. It was conceded that there was no consultation. However, Mr Wood submitted that the issue is whether there was an obligation to consult. It was accepted that, if there was an obligation to consult, then it was not a genuine redundancy if there was no consultation. 186 It was contended that there is no consultation obligation contained in clause 18.3 of the enterprise agreement. For there to be an obligation to consult, the clause must say that.187
[118] Encouragement was said not to constitute an obligation. 188 Reference was made to the decision in Reeves v MaxiTRANS Australia Pty Ltd.189 The use of the word “will” in clause 18.3 was said to be merely encouragement/aspirational. It was said to say that voluntary terminations will be encouraged ie. the parties believe in this and they support it. It does not impose an obligation to do anything.190
[119] However, even if clause 18.3 imposed an obligation, it is not an obligation of a consultative type. The Tribunal was referred to the consultation provisions which have been around since 1984 following the Termination, Change and Redundancy cases 191 It was argued that, even if there was an obligation to put calls out for expressions of interest in voluntary redundancy, that would be a substantive obligation but not a consultative obligation. The substantive obligation was described as - you must ask for expressions of interest; you must consider such responses and you must give the opportunity for persons to volunteer. That is - you must not make people redundant until you go through this process of seeking voluntary terminations.192 Mr Hanby’s evidence was referred to where he stated that the applicants and the Construction, Forestry, Mining and Energy Union (CFMEU) did not seek any consultation about this issue or raise a dispute or grievance until they filed the unfair dismissal applications with Fair Work Australia.193
Reasonable redeployment opportunities
[120] It was submitted that there were no redeployment opportunities of a reasonable nature within the Building division. This was due to a decrease in project work due to the PVIS and BER schemes, which had been the Federal Government’s response to the global financial crisis, coming to an end. Once that stimulus had run its course, the work within the Building division came down to a level lower than normal. 194 With respect to the 25 projects referred to in the letter195 from the CFMEU dated 28 June 2011, 23 of the 25 projects were within the Building division with no opportunities available for redeployment.196 Mr Stevens’ evidence that there were no vacancies in the Building division was highlighted.197
[121] Mr Wood stated that, in relation to every other project within the Building division, no new employee who was not already employed within the Building division, was employed between 1 December 2010 and 31 January 2011. 198 Further, Mr Wood indicated that there were no new employees employed on the Australian Catholic University project stage 3, stage 3 of the Campbell project and the low density housing project (Atherton Gardens) between 1 December 2010 and 31 January 2011. All of the employees on these projects and also the BER package 44 project had been employed previously within the Building division. When their project had finished they had been redeployed to one of these projects. It was said to be unreasonable in all of the circumstances for any of the applicants to have been redeployed to those positions in circumstances where that would have meant that someone else within the Building division would have had to have been made redundant.199
[122] Mr Hanby’s evidence was highlighted that there were no suitable vacancies in relation to Rail, Water, Mining Services and Telco and Energy. With respect to Water and Mining Services, there were no vacancies at all because there was no work. In relation to the Building and Engineering divisions, Mr Hanby referred to a number of projects within the engineering division - a pipeline project, the Nagambie bypass project and the PenLink project. His evidence was that enquiries had been made and there were no suitable vacancies. 200 It was stated that, as set out in the respondent's representative’s letter201 to the CFMEU dated 30 June 2011, no new CW1 employees were employed on the Nagambie bypass project in the period from 1 December 2010 to 31 January 2011.202
[123] In terms of the PenLink project, it was explained that the employees on this project are skilled in the construction of major roads and the bridges associated with major roads. It was stated that, there was no evidence until 30 June 2011 that there were persons who were classified as CW1 on the PenLink project, none of whom were peggys. The three peggys had already been employed earlier and the occupational health and safety representatives and the employee representatives had been elected earlier as well. The respondent indicated that these 16 employees were trained in, or otherwise experienced in, construction work. None of the applicants were trained in, or had any experience in, construction work. Their previous experience had been to act as peggys on building sites which did not involve the heavy machinery found on a road construction site nor earthmoving. They had not been trained in any of the skills and were not experienced in any of the skills. 203
[124] Mr Currie’s e-mail to Mr Hanby confirming that there were no suitable vacancies at PenLink for labourers coming off building jobs was referred to. 204 Further, it was submitted that the process that underpinned Mr Curries e-mail was entirely reasonable in that there were five people involved from HR, Mr Stevens was consulted and employees’ files were examined together with the CVs prepared by the applicants themselves.205
[125] It was contended that Mr Edwards’ witness statement was the key one for understanding the speculative nature of all of the applicants’ cases. Abigroup argued that Mr Edwards had no idea whether or not he had the skills necessary to carry out any of the jobs on the projects he listed in his witness statement. Further, no evidence was provided by Mr Edwards or the CFMEU to support this assertion. 206 This submission was said to be supported by a letter to Abigroup’s representative from the CFMEU requesting evidence of the names, classifications and date of employment for any construction worker engaged by the respondent in the period 1 December 2010 to 31 March 2011 for a number of sites.207 It was stated that these sites were almost identical to the sites identified by Mr Edwards except with the addition of the Nagambie bypass project.208 It was argued that the applicants did not try and prove their contentions. Rather, all they did was throw mud and accusations and spray around allegations. No evidence was called by the applicants that there were in fact suitable positions for these employees at PenLink.209
[126] Mr Wood submitted that it was not possible to say, on the basis of the evidence, that there were suitable vacancies on the PenLink project. 210 A skills matrix of the 16 employees who were employed between 1 December 2010 and 31 January 2011 on the PenLink project211 was compared with the skills matrix for Mr Allan, Ms Comley, Mr Crema and Mr Edwards.212 It was submitted that the only thing in common between the 16 employees employed on the PenLink project and the applicants was that they were all classified as CW1s.213 Mr Wood argued that it was not possible in this case to make a finding that there were vacancies for jobs which were potentially suitable for the applicants. Reference was made to the second Ulan Coal decision.214
Harsh, unjust or unreasonable
[127] It was submitted that if the applicants succeeded in satisfying the Tribunal that their dismissals were not cases of genuine redundancy, it would be found by the Tribunal that they had not presented a case sufficient to discharge the onus upon them to satisfy the Tribunal that their dismissals were harsh, unjust or unreasonable.
[128] With respect to valid reason, (section 387(a)), it was stated that the applicants’ capacities and conduct played no part in the decision to dismiss them. The Tribunal was referred to the decision in Di Masi v Coastal Fisheries Pty Ltd 215 where it was found that, although the dismissal was not a case of genuine redundancy, the dismissal was not harsh, unjust or unreasonable.216
[129] Mr Woods submitted that each of the applicants was told the reason for their dismissal. This was that the respondent had no work for them to perform. 217
[130] Sections 387(c) and (e) of the Act were said to be not relevant in these cases. 218
[131] There were said to be no evidence that any of the applicants requested the attendance of a support person, let alone that any request was unreasonably refused. 219
[132] It was submitted that the employer is a large employer with dedicated Human Resource expertise. There were said to be no deficiencies in the procedures and that none had been identified by the applicants. 220
[133] With respect to any other matters to which the Tribunal should have regard, it was submitted by the respondent that there were three issues. The first one was that the respondent had no work for labourers to perform. Once these stimulus-inspired building programs came to an end, it was inevitable that employees would be made redundant. 221 A decision to dismiss an employee because there is no productive work for them to perform is one based upon a valid reason.222
[134] Secondly, the respondent kept each of the applicants employed until late January 2011 in the hope that it might win additional work to which each could have been redeployed. It was this additional work that the applicants could have been redeployed to. Had the respondent’s bids been successful, the applicants would not have been made redundant. The applicants’ retention until late January 2011 was beyond the expiry of the programme of useful work that it had for each of them. It could therefore be said that the respondent went to considerable lengths to avoid having to make the applicants redundant. 223
[135] Thirdly, the employees concerned were paid for January 2011 - ie. up to 28 January 2011 - even though they were not required to work for the majority of it. 224
CONCLUSIONS
Statutory context
[136] Section 385(d) establishes that a person will not be “unfairly dismissed” within the meaning of the Act if the dismissal was the result of a “genuine redundancy”. Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[137] Section 389 of the Act establishes the meaning of genuine redundancy in the following terms:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[138] The Explanatory Memorandum 225 provides some indication of the apparent intention of the Parliament and provides relevantly as follows:
- a machine is now available to do the job performed by the employee;
- the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
- the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548. The following are possible examples of a change in the operational requirements of an enterprise:
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.
1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.
1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.
1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”
Section 385
[139] There was no contest between the parties that each of the applicants had been dismissed (s.385(a)) and that the employer was not covered by the Small Business Fair Dismissal Code (s.385(c)).
[140] Before determining whether the dismissals were harsh, unjust or unreasonable (s.385(b)), it is necessary to decide whether the dismissals were not a case of genuine redundancy (s.385(d)).
Section 389
[141] As set out above, section 389 of the Act provides the meaning of “genuine redundancy”.
[142] I will deal with each of the elements of s.389 in turn.
Section 389(1)(a) - redundancy?
[143] It was not in dispute between the parties that there were changes in the operational requirements of the employer’s enterprise. What was not agreed was whether the applicants’ employer no longer required their job to be performed by anyone because of these changes.
[144] The applicants argued that, as 16 (CWI) labourers were being employed on the PenLink project (Engineering division) at the same time as the applicants were being dismissed from the Building division, there was no “overall reduction” as required by the Ulan Coal Full Bench. It was therefore not accepted that the applicants’ positions as labourers were no longer required by the company. Apart from the four applicants, there was only one other labourer terminated during the relevant period.
[145] On the other hand, Abigroup contended that each of the applicants was dismissed because the projects that they were working on had come to an end. Therefore, their jobs were no longer required as there was no further work on either of the projects. Their dismissals were said to be the result of the end of a large spike of work created by the BER stimulus package and the PVIS package.
[146] I have considered carefully all of the material before me and I find that Abigroup no longer required the four applicants’ jobs to be performed by anyone because of the changes in the operational requirements of the employer’s enterprise. These operational changes were the ending of the two projects that the applicants were working on respectively. The two schools concerned were handed over for the start of the school year in late January 2011. There was no more work to be done on the schools. The jobs that each of the applicants had been doing were no longer required to be performed (by the applicants or anyone else) as the schools were built and had been handed over for the students to commence the school year.
Section 389(b) - obligation to consult
[147] It was common ground that the applicable industrial instrument in these cases is the Abigroup Contractors Pty Ltd - Southern Region, Building division and the CFMEU Building and Construction Industry Collective Agreement 2008 - 2011 (the Agreement). It was also not disputed that Abigroup had not consulted with the employees concerned nor the union. However, the question to be determined is whether there was an obligation in the Agreement for the company to consult about the redundancies.
[148] It was the applicants’ contention that clause 18.3 of the Agreement contained within it an obligation to consult. This was the result of the requirement to encourage voluntary redundancies which could not be done without consultation ie. notifying the employees in a process which opens up a dialogue about the redundancies and which requires the employees to make a decision about whether or not to volunteer. In support of this submission, the decision in Senol Kaysal v DBM Handrails Pty Ltd 226 was relied on.
[149] On the other hand, the respondent submitted that clause 18.3 of the Agreement did not constitute an obligation to consult as it did not say that. It was Abigroup’s view that neither was there an obligation to call for voluntary redundancies. However, if there was an obligation to put calls out for volunteers for redundancy, then it was a substantive obligation rather than a consultative obligation.
[150] It is useful at this point to set out the relevant parts of clause 18 of the Agreement:
“8. RECRUITMENT & TERMINATION
18.1 Subject to the terms and conditions of the Award, it is agreed that it is the company's prerogative to determine the order of selection of employees for employment or retrenchment.
18.2 All relevant legislation governing unfair dismissal, discrimination etc. will be
observed;
18.3 Voluntary terminations will be encouraged as a first step;
18.4 The seniority of employees - within classifications, experience or skills held - will be considered by the Company in selecting employees for retrenchment;
18.5 The grievance procedures set out in clause 10 will apply in the event of any concerns arising regarding retrenchments.”
[151] Clause 18.3 is the clause that is in contention. As has been observed by both parties, clause 18 is sparsely written and not well structured. From a plain reading of clause 18.1 to 18.5, the words “consult, consultation or consultative” do not appear at all. It was the applicants’ argument that clause 18.3 embodied an obligation on the part of the employer to consult about redundancies. This was because that, in order to encourage voluntary terminations, inter alia, there had to be communication of impending redundancies to the relevant employees. An invitation to apply for a voluntary redundancy would also need to be put out to employees.
[152] I have not been persuaded that clause 18.3 of the Agreement embodies an obligation for the employer to consult about the redundancies. As set out above, the clause does not include the word “consultation” in any of its forms. The obligation that is contained in that clause is that the employer “will” encourage voluntary terminations as a first step. The “encouraging” or calling for voluntary terminations as the first step in the process, obviously, cannot be done by the employer in a vacuum. It requires communication between the employer and the employees concerned. However, this is communication and not consultation as per the Termination, Change and Redundancy case and subsequent decisions.
[153] In making this finding, respectfully, I have formed a different view to my learned colleague’s decision in Senol Kaysal v DBM Handrails Pty Ltd. 227 The circumstances in that matter are different to some extent to these ones. As well, the reasons for the lack of conformity, in that case, with clause 18.3 have not been detailed. Rather, the emphasis appears to have been on clause 18.5 of the Agreement. This issue was not raised in these applications.
[154] Therefore, I find that the Agreement does not provide the employer with an obligation to consult about the redundancy.
[155] Accordingly, Abigroup has neither complied nor not complied with any obligation in the enterprise agreement to consult about the redundancies, as the enterprise agreement does not contain an obligation to consult about redundancies.
Section 389(2)(a) - reasonable to redeploy
[156] This section provides that a person’s dismissal was not a case of genuine redundancy, if it would have been reasonable, in all of the circumstances, for the person to be redeployed within the employer’s enterprise. The applicants did not pursue s.389(2)(b) - the enterprise of an associated entity of the employer. Rather, they focused on the Building and Engineering divisions, Southern Region of Abigroup.
[157] It was argued on behalf of the applicants that they should have been redeployed as peggys/labourers to the PenLink project. They contended that new employees were being recruited into these positions on the PenLink project over December 2010 and January 2011 when it became likely that they would be made redundant and then were made redundant. It was submitted that it was reasonable for the applicants to have been redeployed to those vacant positions.
[158] For the respondent, it was contended that there were no reasonable redeployment opportunities available in the Building division. This was due to the ending of the stimulus projects - BER and PVIS. Within the Engineering division, it was stated that no-one was employed on the Ngambie Bypass project during December 2010 and January 2011. During this period, 16 new labourers were employed on the PenLink project. However, it was said that the applicants had not been trained in or were experienced in civil construction work. Therefore, it was not reasonable in all of the circumstances to redeploy the applicants into these vacant positions.
[159] I have carefully considered all of the material before me and I am satisfied that Abigroup had vacancies for jobs which were potentially suitable for the applicants - the CWI labourer positions on the PenLink project, Engineering division. The CWI classification is the base level classification in the Agreement and is the same classification as that of each of the applicants. Unlike the situation in the second Ulan Coal decision, there was no policy within Abigroup against redeployment between divisions. Mr Hanby, in fact, explored redeployment possibilities in all of the divisions of the Southern Region of Abigroup. The vacancies on the PenLink project and the filling of them occurred at the same time that Mr Hanby and Mr Currie were discussing redeployment possibilities for the applicants on the PenLink project. No reason was given during the hearing as to why the applicants were found to be not suitable by Mr Currie. Mr Hanby did not ask Mr Currie for the reason. He simply accepted Mr Currie’s view that there were no suitable vacancies for the applicants on the PenLink project.
[160] Mr Hanby’s evidence also was that some of the vacancies were filled by persons who had just finished a 10 week training course and who had required supervision and support once “on the job”. The applicants had experience ranging upwards from two years working in the CWI classification and for the company. I have not been persuaded that it would not have been reasonable for the applicants to have been redeployed into four of the 16 vacancies and, if necessary, for the applicants to have undertaken the 10 week training course, as four of the successful applicants were required to do. Any perceived inadequacies on the part of the applicants would be likely to have been remedied by the training. It would seem unreasonable for four current employees to have been dismissed when four other people, who are not employees of the company, are offered employment and a 10 week training course with on the job support and supervision after the course.
[161] Therefore, as it would have been reasonable in all of the circumstances for the applicants to have redeployed within Abigroup’s enterprise, the requirements of s.389(2)(a) have not been met.
[162] Consequently, as the applicants’ dismissals were not cases of genuine redundancy, the requirements of s.385(d) have been met.
[163] What remains to be determined then, pursuant to s.385, is whether the dismissals were harsh, unjust or unreasonable (s.385(b)).
s.385(b) - was the dismissal harsh, unjust or unreasonable?
[164] In order to determine whether the dismissal of each of the applicants’ employment was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“Section 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
I will deal with each of these factors in turn.
Valid reason – s.387(a)
[165] It was common ground that the reason for the dismissal of each of the applicants did not relate to their conduct or capacity. Rather, the reason given to the applicants was that there was no work available as their projects had finished and there were no suitable redeployment opportunities ie. changed operational requirements of the employer.
[166] Accordingly, as the reasons for the dismissals do not relate to the applicants’ “capacity or conduct”, sections 387(a), (b), (c), (d) and (e) are not relevant factors in this case.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[167] It was common ground that the employer is a large employer and that it had a dedicated Human Resources area. A number of Human Resources persons were involved in the attempts to redeploy of the applicants and their subsequent dismissals.
Any other matters – s.387(h)
[168] It was contended on behalf of the applicants that the effect of their dismissals was harsh given their age, economic and personal circumstances. A further relevant consideration was that one of the applicant’s was a woman who was working in a male dominated industry.
[169] On the other hand, Abigroup submitted that there were three relevant other matters. The first one was that the respondent had no work for labourers to perform. Secondly, consideration should be given to the fact that each of the applicants was kept employed until late January 2011. This was in the hope that it might win additional work to which they could have been redeployed. Finally, it was stated that each of the employees was paid up until 28 January 2011 although they were not required to work for the majority of it.
Conclusion
[170] In all of the circumstances of these matters and, having taken account of each of the factors in s.387 of the Act, as relevant, I determine that, the dismissal of Mr Crema, Mr Allan, Mr Edwards and Ms Comley was harsh, unjust or unreasonable.
[171] It therefore follows that, pursuant to s.385 of the Act, Mr Crema, Mr Allan, Mr Edwards and Ms Comley have been unfairly dismissed.
REMEDY
[172] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[173] With respect to the requirements of s.390, I am satisfied that each of the applicants was protected from unfair dismissal at the time of their dismissal (s.390(1)(a)) and that each of the applicants has been unfairly dismissed (s.390(1)(b)). Further, each of the applicants had made an application under s.394 of the Act (s.390(2)).
[174] Mr Edwards does not seek a remedy with respect to his application. In terms of s.394(3)(a) and (b), on the basis of the material before me with respect to Mr Edwards, I am satisfied that both reinstatement and an order for payment of compensation is inappropriate in all of the circumstances. Therefore, the requirements of s.390 having been satisfied and the making of an order for reinstatement or compensation being discretionary, I determine that there be no remedy ordered with respect to Mr Edwards’ application.
[175] In terms of Mr Crema, Mr Allan and Ms Comley, during the hearing, the parties indicated a preparedness to hold discussions regarding a possible settlement in the event the Tribunal determined that a remedy should be ordered. Given the elapse of time, the parties are requested to confirm that they are prepared to hold such discussions. Confirmation or otherwise is to be forwarded to Chambers by close of business on Tuesday 3 July 2012.
[176] In the event that the parties are content with this approach, a three week period will be allowed for discussions to occur.
[177] In the event that the parties are unable to reach a settlement in these matters, the Tribunal will determine the appropriate remedy. Brief submissions will be sought from the parties in this regard.
COMMISSIONER
Appearances:
M Sayers, of Counsel for the applicants
S Wood, of Counsel for the respondent
Hearing details:
2011.
Melbourne.
July 5, 6, 7 and 8.
1 Exhibit A3
2 Transcript PN 207 - 209
3 Ibid PN 212 and Exhibit A3 at paragraph 2
4 Ibid PN 213 - 218 and ibid at paragraph 5
5 Ibid PN 219 - 222
6 Ibid PN 255 - 258
7 Ibid PN 259 - 265
8 Ibid PN 266 - 285and PN 373 - 383
9 Exhibit A3 at paragraph 6
10 Transcript PN 330
11 Exhibit A3 at paragraphs 3 and 4
12 Ibid at paragraphs 7 - 10
13 Ibid at paragraphs 11 - 13
14 Ibid at paragraphs 14 - 19
15 Ibid at paragraphs 23 - 24
16 Ibid at paragraphs 25 - 26
17 Exhibit A4
18 Ibid at paragraph 2
19 Transcript PN 401 - 410
20 Ibid PN 411
21 Ibid PN 415 - 419
22 Exhibit A4 at paragraphs 3 - 4
23 Ibid at paragraph 6
24 Ibid at paragraph 7
25 Ibid at paragraph 8
26 Ibid at paragraph 9
27 Ibid at paragraphs 10 and 14
28 Exhibit A5
29 Ibid at paragraph 2 and Transcript PN 446
30 Ibid at paragraphs 2 and 5
31 Ibid at paragraph 13 and Transcript PN 430
32 Transcript PN 431 - 442
33 Ibid PN 447 - 448
34 Ibid PN 449
35 Exhibit A5 at paragraphs 3 - 4
36 Ibid at paragraph 6
37 Ibid at paragraphs 7 - 8
38 Ibid at paragraphs 9 - 11
39 Ibid at paragraph 12
40 Ibid at paragraphs 14 and 16
41 Exhibit A10
42 Ibid at paragraphs 2 - 9
43 Transcript PN 494
44 Exhibit A10 at paragraph 16
45 Transcript PN 504
46 Ibid PN 508
47 Exhibit A10 at paragraphs 11 - 13
48 Ibid at paragraphs 14 - 15
49 Ibid at paragraphs 18 - 23
50 Exhibit R9
51 Ibid at paragraph 3
52 Transcript PN 536
53 Ibid PN 541 - 544 and Exhibit R9 at paragraphs 12 and 14
54 Exhibit R9 at paragraphs 5 - 7
55 Ibid at paragraphs 8 - 11
56 Ibid at paragraphs 16 - 19
57 Exhibit R10
58 Ibid at paragraph 2 and 5
59 Ibid at Attachment KS-1 and Transcript PN 566 - 568
60 Transcript PN 577
61 Ibid PN 593 - 594
62 Ibid PN 598
63 Ibid PN 611 - 613
64 Ibid PN 599 - 609
65 Ibid PN 618 - 620 and 629 - 635
66 Ibid PN 621 - 623 and 626
67 Ibid PN 625 and 627 - 628
68 Ibid PN 637 - 654
69 Ibid PN 655 - 656
70 Ibid PN 803
71 Ibid PN 804 - 807 and 812
72 Ibid PN 657 - 668
73 Exhibit R10 at paragraph 38
74 Transcript PN 679 - 702
75 Ibid PN 714 - 722
76 Ibid PN 737 - 748
77 Ibid PN 750 - 754
78 Ibid PN 766
79 Ibid PN 843 - 844
80 Ibid PN 750 - 780 and Exhibit R10 at paragraph 18
81 Ibid PN 789 - 794
82 Ibid PN 796
83 Ibid
84 Ibid PN 797 and Exhibit R10 at paragraph 31
85 Exhibit R10 at paragraph 20
86 Ibid at paragraphs 25 - 28 and 32
87 Ibid at paragraphs 35 - 37 and 39
88 Exhibit R12
89 Ibid at paragraphs 2 and 16 and Transcript PN 886 - 890
90 Transcript PN 894 - 899
91 Ibid PN 900 - 904 and Exhibit R12 at paragraph 42
92 Ibid PN 905 - 912
93 Ibid PN 913 - 918 and 924
94 Ibid PN 925 and Exhibit R12 at paragraph 13
95 Ibid PN 926 - 931
96 Ibid PN 992 - 1001 and 1004
97 Ibid PN 1002 and 1065
98 Ibid PN 1066 - 1067
99 Ibid PN 932 - 943
100 Ibid PN 945 - 962
101 Ibid PN 963 - 970
102 Exhibit R12 at paragraphs 17 - 18
103 Ibid at paragraphs 19 - 20
104 Ibid at paragraph 25
105 Ibid at paragraph 26
106 Transcript PN 963, 971 - 974 and 1068 - 1072
107 Ibid PN 987 - 991
108 Ibid PN 1070 - 1076
109 Ibid PN 975 - 985
110 Ibid PN 1090 - 1097
111 Exhibit R12 at paragraph 23
112 Transcript PN 1005 - 1009
113 Ibid PN 1125
114 Ibid PN 1031
115 Ibid PN 1012 - 1026, 1032 and 1056 - 1061
116 Ibid PN 1034 - 1050
117 Ibid PN 1051 and 1063
118 Exhibits R5 and R6
119 Transcript PN 1078 - 1080
120 Ibid PN 13 and 1209
121 Ibid PN 13
122 Ibid PN 14 and 1210
123 Ibid PN 1210 and Exhibit A11 at paragraphs 3 - 4
124 2003 IR 215, Transcript PN 1211 - 1214 and Exhibit A11 at paragraph 5
125 Ibid PN 16 and Exhibits A1 and A2 at paragraph 9
126 Ibid PN 1215, Exhibit A1 at paragraph 10 and Exhibit A11 at paragraph 6
127 Ibid PN 168
128 Ibid PN 169
129 Ibid PN 1216 and Exhibit A11 at paragraph 7
130 Ibid PN 1217 - 1219 and ibid at paragraph 8
131 Ibid PN 1220 and ibid at paragraph 9
132 Ibid PN 1221 - 1223
133 PR977445, 27 June 2007, Exhibit A11 at paragraph 10 and Transcript PN 1228 - 1229
134 Transcript PN 1230 - 1232 and Exhibit A11 at paragraphs 11 - 12
135 [2010] FWAFB 3488, Exhibit A 11 at paragraph 16 and Transcript PN 1236 - 1237
136 Exhibit A11 at paragraphs 13 - 14 and Ibid PN 1237
137 Ibid at paragraph 17 and ibid PN 1238
138 Ibid at paragraph 18 and ibid PN 1239
139 Ibid PN 1240
140 Ibid PN 27 - 28
141 Ibid PN 29 and Exhibits A1 and A2 at paragraph 17
142 Ibid PN 28 - 29
143 [2010] FWA 8426
144 Transcript PN 1241 - 1243 and Exhibit A11 at paragraphs 20 and 22
145 Ibid PN1244 - 1246 and ibid at paragraphs 23 - 25
146 Ibid 1247 - 1249 and ibid at paragraph 26
147 Ibid PN 1250
148 Ibid PN 31
149 Ibid PN 32 - 33
150 Ibid PN 35 and 1252 and Exhibit A11 at paragraph 29
151 Ibid PN 35 - 36
152 Ibid PN 1253 and Exhibit A11 at paragraph 30
153 Ibid PN 1253 - 1256
154 Ibid PN 1257 - 1260
155 Exhibits R5 and R6
156 Transcript PN 1260 - 1267 and Exhibit A11 at paragraphs 33 - 36
157 Ibid PN 1268 - 1271
158 Ibid PN 1272
159 Ibid PN 37 and Exhibit A11 at paragraph 39
160 Ibid PN 1278 and ibid at paragraphs 44 - 45
161 (2011) FCAFC 54
162 Transcript PN 1278 - 1279
163 Ibid PN 37
164 Exhibit A11 at paragraphs 40 - 42
165 Ibid at paragraphs 46 - 47
166 Ibid at paragraphs 53 - 55 and Transcript PN 38 - 39 and 1280
167 Ibid at paragraph 54 and ibid PN 1281
168 Ibid at paragraph 56
169 Transcript PN 1282
170 Ibid PN 1282 – 1289
171 Ibid PN 39 - 41 and 1280 and Exhibit A11 at paragraph 57
172 Ibid PN 155 and 1303 and Exhibit R13 at paragraph 1.2
173 Ibid PN 1303
174 Ibid PN 1304 - 1305
175 (2003) IR 215
176 Transcript PN 1310 - 1312
177 Ibid PN 1313
178 Ibid PN 1313, Exhibit R13 at paragraphs 1.8 and 2.2 -2.7 and Exhibit R7 at paragraph 5.2
179 [2010] FWAFB 3488
180 Transcript PN 1313 - 1329
181 Ibid PN 67
182 Ibid PN 67 - 69 and 74
183 Ibid PN 70 - 71
184 Ibid PN 71
185 Ibid PN 72 - 73
186 Ibid PN 1330
187 Ibid PN 153 - 154 and Exhibit R13 at paragraphs 3.1-3.2
188 Ibid PN 1332
189 (2009) 188 IR 297 and Transcript PN 1333 - 1341
190 Ibid PN 1347 - 1349 and Exhibit R7 at paragraph 6.17
191 (1984) 8 IR 34 and (1984) 9 IR 115, Exhibit R7 at paragraphs 6.2-6.3 and Transcript PN 153 and 1371 - 1372
192 Transcript PN 154 and 1375
193 Ibid PN 1376 - 1380
194 Ibid PN 77 and 1385 and Exhibit R13 at paragraph 2.2
195 Exhibit R1
196 Transcript PN 83
197 Ibid PN 1385
198 Ibid PN 74
199 Ibid PN 75 - 76
200 Ibid PN 1384
201 Exhibit R3
202 Ibid and Transcript PN 84
203 Transcript PN 88 - 90
204 Ibid PN 1386
205 Ibid PN 1387
206 Ibid PN 49 and Exhibit R7 at paragraph 7.1
207 Ibid PN 53, Exhibit R1 and Exhibit R13 at paragraph 4.3
208 Ibid PN 54 and Exhibit R13 at paragraph 4.4
209 Ibid PN 1389 - 1391 and ibid at paragraph 4.7
210 Ibid PN 1393
211 Exhibit R5
212 Exhibit R6
213 Transcript PN 117
214 [2010] FWAFB 7578 and ibid PN 1393 - 1397
215 [2010] FWA 6280
216 Exhibit R7 at paragraph 10.9
217 Ibid at paragraph 11.2
218 Ibid at paragraphs 11.3 and 11.5
219 Ibid at paragraphs 11.4
220 Ibid at paragraphs 11.7 - 11.10
221 Ibid at paragraph 11.11-11.12
222 Ibid at paragraph 11.13
223 Ibid at paragraph 11.14
224 Ibid at paragraph 11.15
225 Explanatory Memorandum in relation to the Fair Work Bill 2008
226 [2010] FWA 8426
227 Ibid
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