[2016] FWC 461

FAIR WORK COMMISSION

DECISION

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

DRW Investments Pty Ltd t/as Wettenhalls
v
Timothy Richards & Others
(C2015/4963)

DEPUTY PRESIDENT SAMS

SYDNEY, 22 JANUARY 2016

Application to reduce redundancy pay – transport and distribution services industry – loss of contract -option of remaining employed by the employer or working for new employer – no resignation of employees –– no transfer of entitlements – whether redundancy at the initiative of the employer – whether employer ‘obtained acceptable employment’ – meaning of ‘obtained acceptable employment’ – terms of enterprise agreement – interaction of enterprise agreement with National Employment Standards (NES) – no termination of employment - employees and their roles not made redundant – s 120 of the Act cannot apply – no jurisdiction – application dismissed – alternatively, whether employer ‘obtained acceptable employment’ – same work, rate of pay, location and conditions – whether employer ‘strong and moving force’ – negotiations to achieve wage parity – representations to engage all employees – employer obtained acceptable employment – employees’ choice to accept new employment or remain employed – no pressure or coercion – all employees accepted new employment – redundancy pay would be reduced to nil.

[1] In September 2014, DRW Investments Pty Ltd (‘DRW’) was informed by PGH Bricks & Pavers (PGH) that it had been unsuccessful in tendering for a new contract to provide transport and distribution services to PGH and would cease providing those services, effective 28 November 2014. Kings Transport & Logistics Pty Ltd (‘Kings’) was the successful tenderer for the contract. As a consequence, a number of DRW’s employee and sub-contractor Drivers were no longer required to perform work on the PGH contract on DRW’s behalf. DRW informed the affected Drivers that they would either be redeployed to other positions within DRW’s business or alternative employment would be explored with Kings for them to continue working on the PGH contract.

[2] In either circumstance, DRW did not consider that the affected employees were redundant and therefore would not be paid redundancy pay. However, for abundant caution, and as a result of the Transport Workers’ Union of Australia (the ‘Union’) filing an application in the Chief Industrial Magistrates Court (CIM) for a breach of the relevant enterprise agreement (in respect to the non-payment of redundancy pay), DRW filed an application, pursuant to s 120 of the Fair Work Act 2009 (the ‘Act’), to seek a determination from the Fair Work Commission (the ‘Commission’) that the redundancy pay, otherwise payable to six of DRW’s Drivers (the ‘Drivers’ or the ‘respondents’), be reduced to nil. During the hearing of the matter, DRW conceded that the employees were covered by the Amezdroz Pty Ltd & Son t/as Wettenhalls Group – Transport Workers Union Enterprise Agreement 2010 [AE881287] (the ‘Amezdroz Agreement’) and its redundancy pay scale, which is higher than that under the National Employment Standards (NES), would have otherwise applied.

[3] Section 120 and its related preceding section (s 119) are expressed as follows:

119 Redundancy pay

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

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

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

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

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

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

(1) This section applies if:

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

(b) the employer:

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

(ii) cannot pay the amount.

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

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

[4] The relevant clause of the Amezdroz Agreement is cl 37, which is expressed as follows:

37. REDUNDANCY

37.1 Redundancy is a matter covered by the NES. The terms of this clause supplement the entitlement under the NES. The parties agree that redundancy and retrenchment are a last resort where an employee cannot reasonably be redeployed for suitable alternative work.

37.2 Where an employee is under 45 years of age, the employer shall pay in accordance with the following table:

Years of Service	Under 45 years of Age Entitlement
Less than 1 year	Nil
1 year and less than 2 years	4 weeks
2 years and less than 3 years	7 weeks
3 years and less than 4 years	10 weeks
4 years and less than 5 years	12 weeks
5 years and less than 6 years	14 weeks
6 years and over	16 weeks

37.3 Where an employee is 45 years old or over, the entitlement shall be in accordance with the following table:

Years of Service	45 Years of Age and Over Entitlement
Less than 1 year	Nil
1 year and less than 2 years	5 weeks
2 years and less than 3 years	8.75 weeks
3 years and less than 4 years	12.5 weeks
4 years and less than 5 years	15 weeks
5 years and less than 6 years	17.5 weeks
8 years and over	20 weeks

37.4 "Weeks pay" means the all purpose rate for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over agreements payments, shift penalties and allowances paid in accordance with the relevant clauses of this agreement.

[5] The alleged entitlement of each of the six Drivers was as follows:

Name	Length of service	Base rate of pay	Entitlement (NES)	Entitlement (Amezdroz Agreement)
Mr Timothy Richards	1 March 2010 to 28 November 2014 (4 years and 8 months)	$925.56	8 weeks	15 weeks
Mr John Mannix	14 September 2009 to 28 November 2014 (approximately 5 years and 2 months	$925.56	10 weeks	17.5 weeks
Mr Ronald Overton	12 August 1996 to 28 November 2014 (approximately 18 years and 3 months)	$990.76	12 weeks	20 weeks
Mr Anthony Zinna	8 October 1987 to 28 November 2014 (approximately 27 years and 1 month)	$925.56	12 weeks	20 weeks
Mr William Dyer	23 February 1989 to 28 November 2014 (approximately 25 years and 9 months)	$990.76	12 weeks	20 weeks
Mr Peter Annetts	20 June 1973 to 28 November 2014 (approximately 41 years and 5 months)	$925.56	12 weeks	20 weeks

[6] After this application was filed, the Commission was informed that the CIM proceedings had been adjourned to allow this application to be heard and determined. While efforts were made to resolve the matters, this ultimately proved unsuccessful and the six applications were listed for concurrent arbitration. Directions for the filing and service of evidence and submissions were issued. At the hearing, Mr M Baroni, Solicitor, was granted permission to appear, pursuant to s 596 of the Act for DRW and Mr T Warnes from the Union, appeared for the six named Drivers.

THE EVIDENCE

[7] The following persons gave written and/or oral evidence in the proceedings:

Mr Bryan Wardrop, former Major Accounts Manager – Dedicated Services for the applicant;

Mr Peter Milnes, Director, DRW; and

Mr Timothy Richards, Mr Ronald Overton, Mr Anthony Zinna, Mr William Dyer, Mr John Mannix and Peter Annetts (collectively, the ‘Drivers’)

For the applicant

Mr Bryan Wardrop

[8] Mr Wardrop held the position of Major Accounts Manager – Dedicated Services for DRW between 6 February 2013 and 7 November 2014. He was previously employed as National Commercial Manager for Amezdroz Sons Pty Limited t/as Wettenhalls (‘Amezdroz’) from May 2009, until it was wound up in January 2013. He is now State Manager, Victoria and Tasmania for Loscam Australia.

[9] In written evidence, Mr Wardrop explained that Amezdroz’s contractual relationships with its clients, including PGH Bricks and Goodman Fielder had ceased on it being wound up after entering into voluntary administration. As a result, he had been offered employment by DRW subsequent to it being established on or about 29 January 2013. He was responsible for commercial and operational management functions across the Contract Logistics division for various contracts including Goodman Fielder (NSW, ACT, VIC and QLD), CSR Hebel and PGH Bricks (NSW and VIC).

[10] Mr Wardrop said that he was involved in retaining the Goodman Fielder contract up until 17 July 2013, when took over the PGH Bricks account. At the time, there were risks to DRW, as no customers had agreed to enter into a new contract with it, or had given undertakings that DRW would be given ongoing work. He had been engaged in discussions with the employees and the Union delegate, Mr Chris Elliot, between August 2013 and August 2014. Mr Elliot was seeking a pay increase for employees as there had been no increase in 2013. Mr Wardrop had told Mr Elliot that no enterprise agreement would be negotiated, until DRW had a firm commitment from PGH Bricks.

[11] In respect to the PGH contract, between 29 January 2013 and 28 November 2014, DRW had been engaged in the provision of rigid body trucks, semi-trailers, B Doubles and rigid body trucks/trailers with rear mounted cranes for the distribution of bricks and pavers from three sites in Western Sydney to PGH customers across Sydney, with occasional deliveries over longer distances. Fifteen employees were engaged by DRW as Truck Drivers to service PGH, but all of the Drivers were skilled in providing other services, in relation to the Goodman Fielder contract and would periodically assist with Goodman Fielder work; this included himself and the six Drivers. In a supplementary statement, Mr Wardrop explained that he had not meant that Drivers specifically engaged to service PGH, were also servicing the Goodman Fielder contract. Rather, the Drivers were required to assist in the provision of services on the Goodman Fielder contract, by way of relocating vehicles from Cecil Park to Moorebank or transporting employees. The specifics of providing work for PGH or Goodman Fielder were transferable.

[12] The following vehicles were used by those Drivers for these purposes:

1 x 12t Isuzu Rigid Body, with rear mount forklift;

4 x Dual Axle Volvo Prime Movers, towing an articulated tri-axle trailer with rear mount forklift;

2 x Dual Axle Volvo Prime Movers, towing articulated short base B Double trailers with tray mount forklift;

4 x 12t Volvo Rigid Body trucks with mounted crane attachments with detachable tri axle ‘dog’ trailers, used 50% of the time; and

All employees operated dual axle prime movers allocated to the Goodman Fielder NSW fleet, from time to time, as resources were shared between sites.

[13] Mr Wardrop said that on 3 September 2014, Mr Tom Keipert, DRW’s Chief Executive Officer was advised by Mr Geoff Wadeson of PGH that Kings Transport and Logistics Pty Ltd (‘Kings’) had been the successful tenderer for the PGH contract, operating out of Cecil Park. As a consequence, DRW would not be given further work by PGH. This meant that DRW would no longer require a number of roles operating at Cecil Park. This was formally explained to the Drivers at a meeting on 3 September 2014, where it was explained that after November 2014, the Drivers’ roles would not be based at Cecil Park. The Drivers were told that DRW was exploring redeployment at this time and redundancy was not being considered.

[14] Mr Wardrop and Mr Keipert had requested a meeting with the Union’s Sydney sub-branch Secretary, Mr Richard Olsen and Senior Official, Mr Ken Hurst on 15 September 2014 to discuss the loss of the PGH contract. Mr Elliott, as the employees’ Union representative and Mr Colin Walls, the representative of the sub-contractors, were also present. They were advised that there would be no redundancies, as it was proposed that the Drivers would be redeployed by way of employment with Kings. If this were not possible, it was proposed that the Drivers be offered alternative casual positions at the Goodman Fielder Moorebank operation approximately 15km from Cecil Park. Mr Wardrop claimed that, based on his research on the requirements for casual labour at Goodman Fielder, DRW had identified seven casual roles within its business into which the Drivers could be redeployed. This was to be achieved by restructuring runs and rostering changes at the Goodman Fielder site. He annexed a chain of emails, dated 16 September 2014, between himself and Mr Keipert discussing the transfer of employee and sub-contractor entitlements who commenced employment with Kings and the management of Union members’ expectations in this regard.

[15] On 12 September 2014, Mr Wardrop scheduled a meeting for 16 September 2014 so that the Drivers could be introduced to Mr Ben Jones, Kings’ Operations Manager. This was intended to demonstrate that Kings and DRW were working together to redeploy the affected Drivers. At this meeting, Mr Wardrop and Mr Jones met with the Drivers to discuss whether they would be offered employment with Kings. The Drivers had asked whether their entitlements would be transferred. Mr Wardrop replied that DRW would discuss this issue further with Kings, but the Drivers should not expect Kings to take over their entitlements. He reassured them that in the event their entitlements were not transferred, they would be paid out by DRW. He could not recall Mr Michael Fabre, Personnel Manager from Kings telling the Drivers that they would be responsible for damage to Kings’ trucks, but he may have. He denied telling the Drivers to take the offer at this point.

[16] On 17 September 2014, Mr Wardrop provided a spreadsheet to Mr Jones setting out the relevant Drivers’ competency, experience with PGH and some comments on performance. An updated spreadsheet was emailed to Mr Jones on 18 September 2014, with the rates DRW paid its subcontractors. Mr Wardrop explained that a reference to the ‘EBA’ in that email referred to the Amezdroz Agreement. While this agreement did not apply, it had been agreed that it be used as a stopgap measure prior to a new enterprise agreement being negotiated, if DRW was the successful tenderer. It was understood by the parties that the application of the Amezdroz Agreement was temporary.

[17] Mr Wardrop said that at a meeting with Mr Jones to review and negotiate the Drivers’ terms and conditions, Kings had offered rates of pay which were $4 an hour less than those paid by DRW. He had further discussions with Mr Jones on 24 September 2014. On 25 September 2014, Mr Jones sent an email with revised proposed rates of pay and later that day, Mr Wardrop directed Mr Sinadinos of DRW to arrange for employees to be at the Cecil Park site at 5:30am on 30 September 2014 for a meeting with Kings. On the same day, Mr Fabre, forwarded an email to the Drivers setting out the pay rate schedule negotiated by Mr Wardrop. Mr Wardrop had sent an email to Mr Elliot, indicating that Grade 6 and 7 Drivers under Kings’ offer would be paid $18.75 less per week and Grade 8 Drivers would be paid $66.13 less per week. He also advised DRW management of this outcome. He wrote to Mr Elliot again on 29 and 30 September 2014. He acknowledged that he had undertaken these negotiations on the basis of base rates of pay to be paid to the Drivers.

[18] Mr Wardrop advised the Drivers at a meeting on 30 September 2014, that he was working as a ‘go between’ for all negotiations with Kings and would continue to negotiate for higher rates of pay. In an email later that day, he undertook to keep Mr Jones apprised of any questions the Drivers had in relation to their proposed terms and conditions. On 1 October 2014, he, Mr Sinadinos, Mr Jones and Mr Fabre organised meetings with the relevant Drivers on 2 October 2014 to discuss potential employment with Kings. He denied having told the Drivers that: ‘You are better off to take the job with Kings on the lesser rate, because we are not guaranteed to offer you anything.’

[19] Mr Wardrop described the negotiations with Kings over the following week. Mr Jones had said that the rates already offered were the best that Kings could do, but that there may be some scope to revise allowances. Mr Wardrop replied that unless the Group 8 rates could be matched, the Drivers would be likely to reject the roles. He reminded Mr Jones that Kings had less than two months before its contract start date. On 13 October 2014, Kings matched the rate paid by DRW and the terms and conditions offered by Kings were on par with DRW’s.

[20] On 22 October 2014, Mr Jones had requested that Kings employees sit in on ‘route rides’ with the DRW Drivers so that they understood the routes they would be undertaking. Because Mr Wardrop was aware that Kings was proposing to offer employment to only six of the ten DRW employees, he ‘strategically’ suggested that the other four Drivers also sit in with Kings’ employees. The next day, Mr Jones advised that Kings would offer positions to all ten Drivers.

[21] At a meeting arranged by DRW on 31 October 2014, the Drivers confirmed that they would accept roles with Kings if offered. In a Toolbox meeting, Mr Wardrop told the Drivers that they would receive offers of employment from Kings and advised them that if they did not want to accept these roles, they would continue to be employed as Truck Drivers performing work for Goodman Fielder, based in Moorebank. The Drivers had said that they would accept employment with Kings on that day.

[22] On 3 November 2014, Mr Wardrop had sent an email asking that the Drivers formally end their employment with DRW. He also sent an email that day confirming that the Drivers had been given formal offers of employment with Kings. Mr Wardrop said that the Drivers had never formally told anyone at DRW that they had commenced employment with Kings. They all ceased attending for work at DRW’s premises on 28 November 2014.

[23] Mr Wardrop emphasised that the Drivers were offered roles with Kings, having been advised of Kings’ successful tender for the PGH contract. They had expressed a preference to continue doing PGH work as they did not want to work on the Goodman Fielder contract (the ‘bread run’). If they had elected to work on the Goodman Fielder contract, they would have been offered permanent full time roles. He had told the Drivers that there were a number of casual employees performing work for the Goodman Fielder contract, on similar hours to those worked on the PGH contract. He had not suggested that there were no available jobs or that there were only casual positions.

[24] Mr Wardrop acknowledged that Mr Peter Stormer had been made redundant at his specific request, but he was not aware of the terms of his redundancy.

[25] Mr Wardrop was strongly of the view that Kings’ offer of parity of base rates of pay was a direct result of his sustained negotiations with Kings. He did not believe that Mr Fabre would have had authority to agree to any rates with any of the Drivers.

[26] In further oral evidence, Mr Wardrop explained that at a meeting on 15 September 2014, he had advised Mr Olsen and Mr Hurst of DRW’s intention to use the personal and professional relationship with Kings to explore redeployment for the relevant employees and subcontractors. Mr Olsen had agreed with this approach and referred to the Union’s own dealings with Kings in similar circumstances. Mr Wardrop had said that DRW would approach Kings directly. He had also advised Mr Olsen of DRW’s Goodman Fielder operations. In addition, Mr Wardrop understood that Mr Keipert had contacted Mr Michael Sankie, the then General Manager of Kings to ask if any roles could be offered to the Drivers. Mr Keipert then told Mr Wardrop that there was capacity to offer roles to the Drivers.

[27] In cross examination, Mr Wardrop agreed that during the early discussions, Kings had indicated that they wished to employ the Drivers on the rates of pay in the National Fleet Administrative Services Pty Ltd – NSW Company Drivers Enterprise Bargaining Agreement 2013 (the ‘Kings Agreement’). Kings had been interested in the DRW Drivers’ experience, but were proposing to advertise to fulfil its staffing requirements on the PGH contract.

[28] Mr Wardrop believed that it was not always the case that a new contractor would seek to employ the old contractor’s workforce. Sometimes, the customer had a particular (adverse) view of that contractor’s workforce. He was aware that PGH had not wanted some of the Drivers, but he had emphasised the benefit of their experience to convince them otherwise. However, he emphasised that they should all be taken on and that PGH did not have a say as to which employees Kings took on. He had wanted to maintain a relationship with PGH with a view as to opportunities for future work. This acted as an incentive to ensure that the transition was ‘seamless’.

[29] Mr Wardrop agreed that the purpose of the meeting on 16 September 2014 was to introduce Kings to each of the Drivers. He believed that the full Drivers’ group of ten to eleven Drivers was present. Mr Wardrop could not recall whether DRW was involved in this meeting. The meeting was to discuss the adjustment in pay rates and differences in allowances. He agreed that Mr Fabre had sent emails directly to the Drivers, with a schedule identifying the rates paid to Kings Drivers working out of CSR sites. In any event, he had understood that Mr Fabre reported to Mr Jones. At the first meeting, Mr Jones had indicated that all rate negotiations and discussions as to driving quality, were to go through him. However, Mr Wardrop considered that it was also important that Kings and the Drivers built trust, by Kings dealing directly with the Drivers.

[30] Mr Wardrop explained that Kings’ initial pay offer on 19 September 2014 was communicated to him and he then informed the Union Site Delegate (Mr Elliott). At the time that the pay rates were being negotiated, Kings had been considering the option of basing their fleet structure primarily on subcontractors. DRW had explained to Kings that its proposed pay rates would not be sufficient to retain the experienced Drivers, especially as they could be redeployed within DRW at the same rate of pay.

[31] Mr Wardrop clarified that there were oral negotiations between Kings and himself between 25 and 30 September 2014. The offers of employment were still forthcoming as of 30 September 2015. He had received an email advising that Mr Jones and Mr Fabre were meeting the Drivers on 1 October, although he could not recall if DRW was involved in this meeting. Its purpose was for the Drivers to meet directly with Kings and clarify the conditions of the enterprise agreement and answer any of their questions. He acknowledged that these meetings were essentially interviews for employment with Kings.

[32] Mr Wardrop said that between 1 and 8 October 2014, he had specific discussions about the RDO provision with Kings, which was based on 38 hours, rather than 40 hours. However, the primary issue was still that the base rates of pay were not high enough for the Drivers and they had taken a collective view that the rates which they presently enjoyed had to be matched by Kings.

[33] Mr Wardrop did not accept a proposition that he was simply acting as the ‘mouthpiece’ or representative of the collective of the Drivers. He did more than facilitate negotiations – DRW was directly negotiating the Drivers’ employment arrangements with Kings. While the Drivers had always wanted to continue performing work for PGH, it was always the case that they could have been redeployed within DRW. The Drivers had insisted that the rates had to be at parity and DRW had put to Kings that, if they wanted a smooth transition with experienced Drivers, it was in their best interests to match the rates.

[34] Mr Wardrop agreed that Kings’ preference was to take on the existing Drivers, although not the entire group at first. It was open to Kings to advertise externally and it was open to DRW to redeploy the Drivers to Goodman Fielder work at Moorebank. Mr Wardrop believed that if the Drivers had applied for PGH roles with Kings after they were externally advertised, the rates of pay would have been much less.

[35] In relation to the negotiations conducted between 12 September and 13 October 2014, Mr Wardrop agreed that DRW met with Kings, each party put its position and he would then feed the information back to the Drivers through the Delegate. He explained that he had not wasted the Drivers’ time by relaying the details of the offer of $4 less an hour, as he knew the Drivers were insistent on comparable rates.

[36] Mr Wardrop believed that the key areas which DRW had negotiated directly with Kings were the parity of pay rates and the increase from six to ten Drivers to be employed by Kings. Mr Wardrop said that the ‘route rides’ requested by Kings were for the purpose of assessing the experience of the Drivers in relation to driving skills and customer service, amongst other things. Mr Wardrop was aware that Kings was unsure about three or four Drivers out of DRW’s Drivers’ group. The ‘route rides’ assisted in increasing Kings’ confidence in those Drivers and were an opportunity for them to prove to Kings that they should be employed on the PGH contract at the same rates. He understood that this group consisted of Mr Zinna, Mr Elliott, Mr Peter Stormer and Mr Richards. Ultimately, all of these Drivers were offered new employment with Kings, except for Mr Stormer. He accepted that the Drivers had proved their experience in the ‘route rides’.

[37] Mr Wardrop conceded that the drivers had advised DRW orally that they would be accepting offers from Kings because they did not want to work on the ‘bread runs’. He was aware that all of the Drivers stopped attending work at DRW premises after 28 November 2014, because the Fleet Allocator, Mr Sinadinos had told him. He had only sent the resignation letters to Mr Elliott seeking that they be signed by all the Drivers.

[38] Mr Wardrop did not accept a proposition that there were no roles available for the Drivers with DRW, as they could have been redeployed at Moorebank. He was not attempting to force the Drivers to resign so as to avoid redundancy payments; he was merely seeking to ensure that their entitlements were ‘tidied up’ from a payroll perspective if they became employed by Kings. There was also the consideration of confirming the operational requirements at the Moorebank site. He had not considered that DRW would file an application to reduce the Drivers’ redundancy entitlements at this time, because he did not believe that there ever had been any redundancies.

[39] Mr Wardrop was shown an email dated 25 September 2015, in which he had written to Mr Keipert, Mr Milnes, Mr Simon Peeke and Mr Brett Amezdroz in the following terms:

‘From an IR perspective, again, this will demonstrate no financial disadvantage to the offer we have negotiated should all employees be offered positions, but still reject them and try and claim redundancy.’

Mr Wardrop reiterated DRW’s position that there were no redundancies. DRW had sought parity of rates of pay if the Drivers chose to be employed by Kings and there were positions available with DRW if the Drivers did not accept them. They were employed as Grade 6 and Grade 8 Truck Drivers and not in any particular role. He noted that Mr Richards had originally been employed to work on the Goodman Fielder contract, but had transferred to the PGH site.

[40] Mr Wardrop had understood that the Drivers had preferred to continue performing work for PGH. The Drivers had been told orally that there would be no redundancies. If any one of them had said that they did not want to work on the PGH contract, they would have been reallocated to other work. When the Drivers said that they would accept work with Kings, DRW decided not to incorporate them into the operational plan at Moorebank.

[41] Mr Wardrop denied that Mr Mannix had approached him to ask about working on the Goodman Fielder contract. Neither Mr Richards or Mr Mannix had ever told him that they wanted to stay on with DRW. He was not aware of what had happened in relation to Mr Stormer’s redundancy, although he understood that he was not offered a job with Kings, as he was on workers’ compensation, which was not forecast to end until after the transition.

[42] Mr Wardrop agreed that he had told the Drivers to consider the roles with Kings and had mentioned their job security, but stressed that this was only because they had expressed the view that they wanted to ‘stay working on the bricks’. He was acting as a bargaining representative for them.

[43] In re-examination, Mr Wardrop described his role as ‘bargaining agent’ as consisting of ensuring that all the Drivers who wanted to remain working on the PGH contract retained the same terms and conditions. He understood that they had accepted the work with Kings because the pay rates were matched. There were no noticeable differences in terms and conditions, except for the provision of RDOs, which was amended with the two additional hours paid per week. The Drivers could have rejected the offers made to them. Mr Wardrop accepted that the Drivers had a long history delivering bricks on behalf of PGH and they wanted to continue with this, provided the terms and conditions suited them.

[44] In answer to a question from me, Mr Wardrop could not say what was paid to Kings’ employees at the time the Drivers ‘transferred’ to Kings.

Mr Peter Milnes

[45] Mr Milnes is a Director of DRW and has been employed by DRW for three years. He was previously the Regional General Manager of Wettenhall Group. He is responsible for all operational aspects of DRW’s business.

[46] In written evidence, Mr Milnes set out the circumstances leading up to the establishment of DRW in 2013. He explained that in January 2013, Wettenhall Group (consisting of Logistics Group Investments Limited, Wettenhalls Logistics Aust Pty Ltd, Amezdroz & Sons Pty Ltd and Wilden Transport Proprietary Limited) was placed into voluntary administration. The directors appointed BDO Australia as the administrator. GE Finance, the primary financier, appointed a receiver, Ferrier Hodgson, to assume all managerial responsibilities for the business. BDO Australia continued to provide the administration function. All of the contracts that the Wettenhall Group had with its customers, including with PGH, were terminated. Ultimately, the business was liquidated and sold.

[47] Mr Milnes said that at around this time, Ferrier Hodgson approached himself and two other senior managers to ask if they wished to participate in a tender process to acquire the relevant assets. He and the two other managers set up an offer to purchase selected assets, including trucks, trailers and forklifts, amongst other things. Some of the assets used to service the PGH contract were actually rented from Toyota Finance. These assets were ultimately acquired under the auspices of a new entity, DRW, which commenced trading on 5 February 2013.

[48] Mr Milnes stressed that DRW did not directly benefit from the contractual arrangements the Wettenhall Group had had with its customers. DRW had to ‘win’ new work with those customers, including the PGH work. A number of employees of the Wettenhall Group were offered employment with DRW, including the Drivers. As a gesture of good faith, DRW recognised the Drivers previous service with the Wettenhalls Group, so as to provide some certainty to the former clients of Wettenhalls Group that DRW had capacity to properly service contracts with them.

[49] Mr Milnes said that, until these proceedings, he had understood that DRW and the Union had informally agreed that the Amezdroz Agreement had no effect, as DRW did not take on contracts from Amezdroz & Sons. He had not seen a letter of offer provided to the Drivers referring to the Amezdroz Agreement as covering their employment.

[50] Mr Milnes described the circumstances in which DRW lost the contract to provide transport and distribution services to PGH. Mr Keipert was told by Mr Geoff Wadeson of PGH that from 28 November 2014, DRW would no longer be engaged to provide these services, as Kings had successfully tendered for the contract. As a result, DRW would no longer require a number of Driver roles at the Cecil Park site.

[51] Mr Milnes explained that, at the time, DRW had twelve employees wholly engaged in the provision of transport services to PGH. Mr Milnes listed ten DRW employees and the vehicles that they were assigned to drive. However, he explained that, although they were assigned to drive specific vehicles, they would only drive that vehicle about 75% of the time and were expected to be able to drive all DRW vehicles. In a supplementary statement, Mr Milnes conceded that it was not the case that Drivers drove the vehicle to which they were assigned only 75% of the time. He maintained that it was an expectation that Drivers had the skillset to provide their driving services on the Goodman Fielder contract.

[52] Mr Milnes said that on 2 September 2014, Mr Wardrop requested that the Drivers attend a meeting at 5:00am, 3 September 2014. At this meeting, Mr Milnes, Mr Wardrop and Mr Keipert explained that their roles would no longer be based at Cecil Park after 28 November 2014. However, it was emphasised that there would be no redundancies, as there were redeployment opportunities within DRW’s business. Mr Wardrop had identified vacancies in the business and Mr Milnes had decided that no full time employees were to be employed to service the Goodman Fielder contract at Moorebank, until the situation of the Drivers who had been servicing the PGH work was finalised. Only casual employees were to be hired in the meantime. Similarly, he also decided not to hire new Drivers to replace positions that became vacant arising from the ordinary turnover of labour. It was not the case that DRW only hired casual employees on the Goodman Fielder contract.

[53] Mr Milnes could not recall the date of a meeting in October 2014, but could recall that the Drivers were told that if they wanted to remain with DRW, there were jobs available in respect to the Goodman Fielder contract and with linehaul. He could not recall Mr Keipert telling the Drivers that if they wanted to work for Kings, they would need to resign. As Mr Wardrop had carriage of the discussion between DRW and Kings, Mr Milnes was not involved in follow up meetings after 3 September 2014.

[54] Mr Milnes denied having told Mr Richards in a telephone call in October 2014 that there was ‘not really much’ work available at DRW. Rather, he had told him that there might be some linehaul and Goodman Fielder work. He also denied that the Drivers had not been offered the opportunity to remain employed by DRW. In any event, the Drivers had all expressed a preference to continue working on the PGH contract. If they had expressed an interest in remaining employed with DRW, they would have been given offers to that effect.

[55] Mr Milnes believed that the vacancies identified in relation to the Goodman Fielder contract were suitable for the Drivers. They were required to use their driving skills at least once a month in relation to Goodman Fielder work. Mr Milnes annexed position descriptions for Truck Drivers servicing the PGH contract and Truck Drivers servicing the Goodman Fielder contract. He observed that the duties and responsibilities of the roles were exactly the same, except that the product delivered was bricks, rather than bread. They were similar in terms of skillset and comparable in terms of salary. He maintained that the roles working on the Goodman Fielder contract were suitable for the Drivers, even if they had not been required to service that contract while performing work for the PGH contract. While the Drivers may not have performed some duties related to delivering bread (for example, operating a hydraulic tailgate and hydraulic mezzanine floor when delivering bread), they would have been offered the necessary training. In any event, they had the necessary transferable driving skills.

[56] It was Mr Milnes’ evidence that he was informed by Mr Wardrop that the Drivers had orally accepted offers of employment with Kings on 31 October 2014. They continued to work for DRW until 28 November 2014. Consequently, the casual employees at Moorebank were offered permanent roles in early 2015. Mr Milnes described being ‘impressed and appreciative’ when Mr Wardrop emailed him on 3 November 2014 to advise that the Drivers had been offered employment with Kings and would be paid the same rates as those paid by DRW. He acknowledged that he had not been personally involved in the negotiation of those rates.

[57] Mr Milnes said that while the Drivers had never resigned from DRW, their last official day was 28 November 2014. They ceased to attend at DRW premises after that day. DRW was informed that the Drivers would not tender their resignations. They had accepted employment with Kings commencing on 1 December 2014.

[58] In cross examination, Mr Milnes confirmed his evidence that DRW had intended that there would be no redundancies of the Drivers as there was work within DRW, and the possibility of transfer to Kings. He denied that he was attempting to avoid the requirement to pay redundancy pay – the emphasis was on ensuring continuity of employment.

[59] Mr Milnes agreed that the options to redeploy to other roles in the business included work on the Goodman Fielder contract. They were negotiating with other businesses, although these were ‘commercial in confidence’. DRW had put a freeze on employment at Goodman Fielder and were ‘seeing what happened with PGH’ to preserve its options. The Drivers could have been redeployed to the Goodman Fielder site, if they had not wanted to stay on the PGH contract with Kings. The negotiations over pay rates conducted by Mr Wardrop had taken a long time to get to the point that they were acceptable to the Drivers. Until that was finalised, Mr Milnes had thought it prudent to have more than one option. For this reason, the relevant roles at the Goodman Fielder site were kept open until the Drivers’ transfer to Kings was finalised.

[60] Mr Milnes conceded that his previous statement that the Drivers provided their driving skills to the Goodman Fielder contract was incorrect, although there was some sharing of equipment. When asked about the differences between driving for the PGH contract and for the Goodman Fielder contract, Mr Milnes explained that any role for which a Driver applied, the prerequisite was for the Driver to have a heavy vehicle driver’s licence suitable for the grade. If there were further requirements to a specific role, training would be provided. DRW was a diverse business, with 220 Drivers operating on the East coast.

[61] Mr Milnes agreed that the Drivers had never resigned from DRW. However, he denied that DRW had terminated their employment. He had been aware that the Drivers had accepted employment with Kings. He emphasised that DRW had worked cooperatively with Kings to ensure a smooth transition. DRW had asked for resignation letters, but they had not been forthcoming. He understood everyone had turned up to work for Kings at the required time. Mr Milnes was not aware of the names of the individual Drivers who had been offered employment by Kings, although Mr Keipert would have been aware of them.

[62] Mr Milnes denied that he had not offered DRW work to the Drivers. He had told them that there would be no redundancies and that DRW would provide ongoing work. He had not specifically offered, for example, a heavy combination job with the Goodman Fielder contract. Because the employees had expressed interest in continuing to work on the PGH contract, these roles had not been advanced as specific proposals. However, he had definitely told the employees that if they did not want to stay working on the PGH contract, they could remain employed by DRW. If any employee had come to him, while the pay rates were being negotiated with Kings, and said that they wanted to remain employed by DRW, it would have been facilitated.

[63] Mr Milnes was aware that Mr Richards had said that he wanted to stay on with DRW in his statement. However, he had accepted an offer with Kings. He had had a phone discussion with Mr Richards in which Mr Richards had asked about the nature of a possible role at Goodman Fielder and the possibility of a role with a container business. He could not recall if Mr Richards had said he was concerned about his long service leave. He thought he would have responded to Mr Richards by saying words to the effect of, ‘I will come back to you’, as he did not want to contradict the other people who were directly managing the process. Mr Richards had been unsure about doing shift work and other aspects of the role. He had not said that he would not accept the offer from Kings. There were a number of meetings where there would have been an opportunity for Mr Richards to follow up his concerns.

[64] Mr Milnes was aware that Mr Stormer had been made redundant after requesting a voluntary redundancy. He had been on WorkCover. Mr Milnes had advice that DRW could not dismiss or make redundant an employee on workers’ compensation. While DRW had wanted to keep Mr Stormer in the business, it was Mr Stormer who sought a redundancy and this was agreed to by DRW.

[65] In re-examination, Mr Milnes explained that there had been a ‘freeze’ placed on casual employees being converted to permanent status or permanent full time employees being employed to service the Goodman Fielder contract, at all times during the process, until the outcome became clearer.

[66] Mr Milnes reiterated that he had not given notice of termination to the Drivers, because he never intended terminating their employment. If they had not accepted the offers with Kings, they would have been retrained and redeployed to the Moorebank site and the casual employees performing that work would have been dismissed.

The respondents

[67] The Drivers were all employed as Truck Drivers by DRW from 2013, having previously been employed by Amezdroz and Sons Pty Ltd t/as Wettenhalls. Annexed to Mr Annetts’ and Mr Overton’s written statements were written offers of employment, in similar terms, from the Wettenhalls Group, dated 3 July 2009. The offers set out that due to CSR Building Products being purchased by the Wettenhalls Group, they were to be offered employment with Wettenhalls. Their classification, duties, location, rate of pay and conditions of employment were to be maintained. Their continuous service with CSR was to be recognised by Wettenhalls and their entitlements transferred. Mr Mannix and Mr Overton annexed a copy of a letter from Ferrier Hodgson dated 6 February 2013, notifying of the sale of the business and assets to DRW. This set out that while some employees would be made redundant, a number of others would have their employment transferred to DRW. Mr Mannix and Mr Overton also annexed copies of letters dated 13 February 2013, in similar terms, setting out an offer from DRW, which confirmed that their employment was to be transferred to DRW. Mr Dyer and Mr Zinna recalled receiving a letter from Ferrier Hodgson, which set out that their terms and conditions of employment would not change and the Amezdroz Agreement would cover their employment with DRW. While neither of them had retained a copy of this letter, they believed it was in similar terms to those received by other Drivers.

[68] Mr Annetts had worked carting bricks, based at the Cecil Park site, for 43 years and has been employed by multiple employers contracted to PGH. Mr Overton set out the recent history of ownership and contracting arrangements at the Cecil Park site. He had worked there since 1994 when he was employed by CSR, which owns PGH. CSR subsequently outsourced the contract to TNT. Linfox took over from them and held the contract until 2004, when PGH took the contract in house again. It was then contracted out to Wettenhalls in 2009. Both Mr Overton and Mr Annetts described having changed their employer when contracting arrangements had changed and their entitlements, classification and service were maintained. Specifically, in the transition between Wettenhalls, the administrators and DRW, Mr Annett said that nothing about his employment changed and his rosters continued as before, although DRW had a new allocator. Mr Mannix noted that he reported to the same managers before and after this transition.

[69] Mr Annetts said he had always used a crane truck. While working for DRW and Wettenhalls, he drove a Volvo 8-wheeler, heavy rigid with a dog trailer and crane. Mr Annetts drove the same type of vehicle when he transferred to Kings. He denied that he had driven any other type of vehicle 25% of the time. Mr Overton explained that while he was employed by DRW and Wettenhalls, he drove a 19 meter double, performing work on the PGH contract. He denied having ever driven another type of vehicle 25% of the time. After commencing employment with Kings on 1 December 2014, he drove a Mitsubishi prime mover.

[70] While working for Wettenhalls, Mr Richards had performed work for the Goodman Fielder contract between 2009 and 2010, before being transferred to the Cecil Park site. After this point, he had only worked on the Goodman Fielder contract one or two times and this was only because he had worked on it in the past. Mr Richards drove a Volvo semi-trailer for this work. When he had commenced employment with Kings on 1 December 2014, he drove a similar vehicle, but it was not a Volvo. He only ever drove a semi-trailer and he is not licensed to unload the crane truck and could not drive a b-double. Mr Mannix had been employed by Wettenhalls to work at the Cecil Park site ‘about five years ago’. While working for Wettenhalls and DRW he drove a tri-axle semi-trailer. When he started employment with Kings on 1 December 2014, he drove a Mitsubishi semi-trailer. He subsequently resigned from Kings on 19 December 2014 after finding another job.

[71] Mr Dyer and Mr Zinna had performed work for PGH for 28 and 27 years respectively. Mr Zinna recalled that during this time, his employment was transferred between Linfox, TNT, Toll, PGH, Wettenhalls and DRW. While working for Wettenhalls and DRW, he had driven a Volvo 8-wheeler, heavy rigid with a dog trailer and crane. He denied that he had driven any other vehicle during this period. Mr Dyer drove a 19m b-double ‘almost exclusively’ while at DRW and initially continued to do so for Kings. However, due to a relocation of that vehicle to different premises, he now drove a semi-trailer. Mr Dyer and Mr Zinna emphasised that nothing changed about their day to day work during the transfer from Wettenhalls to DRW, although Mr Dyer noted his work uniform changed.

[72] Mr Annetts recalled that in mid-2014, DRW had told the Drivers that it was not confident that its tender for a renewed contract with PGH would be successful. When this proved correct, DRW told the Drivers that it would attempt to get them jobs with Kings. He disputed Mr Wardrop’s version of what was said in this meeting. He recalled the possibility of linehaul work being mentioned. Mr Annetts said that at some time after this, the Drivers rejected an informal offer of employment with Kings conveyed by Mr Wardrop because the base rate of pay was less than the rates paid by DRW.

[73] Mr Overton recalled that at a meeting with Mr Wardrop, Mr Keipert and Mr Milnes, the Drivers were told that DRW had lost the contract and that they were ‘not happy about it’. Mr Milnes had mentioned that there may be work for Drivers in relation to new contracts being sought by DRW. Someone from DRW had said that there might be linehaul or bread work, if the Drivers wanted to stay with DRW. He had never been told how many casual employees were providing work for the Goodman Fielder contract or that he could continue to work for DRW on the Goodman Fielder contract.

[74] Mr Mannix and Mr Richards acknowledged that at the meeting on 3 September 2014, Mr Milnes had said that while DRW had not kept the PGH contract, there would be no redundancies. Mr Richards recalled that Mr Milnes said that it was likely that no one would be out of a job. While he recalled that further meetings were proposed to keep the Drivers apprised of what was happening, he said that they were ‘few and far between’. Mr Mannix remembered Mr Milnes referring to the possibility of container work, line haul work or some positions in the ‘bread contract’.

[75] Mr Zinna recalled that at a meeting in early September 2014, which was attended by the Drivers, Mr Wardrop, Mr Keipert and Mr Milnes, Mr Keipert had said that DRW had lost the PGH contract, which he described as a ‘kick in the guts for our company.’ Mr Milnes said words to the effect of:

‘There will be no redundancies and no driver will be without a job. Bryan Wardrop will keep everyone up to date weekly with any positions within DRW.’

He could not recall whether it was said that the Drivers’ roles would no longer be based at Cecil Park. Mr Dyer remembered attending a meeting in early September 2014, at which he was told that DRW had lost its contract with PGH and that DRW was searching for other jobs for thm.

[76] It was Mr Overton’s evidence that after the meeting in early September 2014, the only contact he had with DRW was in relation to Mr Wardrop’s reports about negotiations with Kings. He believed that Mr Wardrop was paying ‘lip-service’ to the negotiations, because he and the Delegate, Mr Elliott, were dealing directly with Kings. He did not believe that the change in rates of pay offered by Kings, had been a result of Mr Wardrop’s representations. He attached a copy of a letter from Kings dated 12 September 2014, which was expressed as follows:

‘Dear Sir / Madam,

As you may or may not be aware, the Kings Transport Group have recently been awarded a three year contract agreement with CSR Bricks. Kings Transport are a privately owned Australian Company employing over 750 staff and engaging approximately 2,000 subcontracted drivers around Australia.

Over the coming weeks, we will be working through the potential opportunities for you as a staff member, employee driver or subcontractor. Each of you will be provided with the opportunity to apply for a role with Kings Transport and we will be holding one on one meetings with those interested in applying.

If you would like to organise a meeting to discuss these opportunities, please return this letter with the information below to Ben Jones:

[address supplied]

Alternatively, please contact me on [number supplied] or via email if you have any questions regarding the above opportunities. [email supplied]

The information sought included name, contact details, licence class, current role with DRW and length of experience with CSR.

[77] Mr Mannix referred to a meeting with the employee and sub-contractor Drivers on the PGH contract, DRW and Kings on 16 September 2014. Mr Fabre had said, ‘We want to talk to all the Drivers individually over the next couple of days and sign everyone up.’ However, Kings had set a condition that Drivers would be responsible for any damage to trucks, which was not acceptable to the Drivers.

[78] Mr Zinna deposed that a couple of weeks after the Drivers were advised that DRW had lost the contract, Kings held a meeting with the employed and sub-contractor Drivers and advised that Kings tender for the contract had been successful. Mr Wardrop was present at this meeting. DRW held two further meetings with Drivers, but these were generally about operational issues, rather than the loss of the contract.

[79] It was Mr Richards’ evidence that Mr Wardrop had told the Drivers on or around 30 September 2014 that they were better off accepting a job with Kings at the lower rate, because there was no guarantee that DRW would offer them any work. He denied having been informed of possible alternative work on the Goodman Fielder contract, or otherwise within DRW, at any time, between DRW losing the PGH contract and his commencing employment with Kings. He would have considered any internal offer seriously as his service was almost long enough to accrue long service leave pro-rata. In any event, he did not believe DRW ever employed permanent employees on the Goodman Fielder contract. Mr Mannix said that when asked at a meeting about the possibility of work on the Goodman Fielder contract, Mr Wardrop had replied, ‘there are probably no jobs, but anyway you wouldn’t want to do that work because it’s weekend work and night work and they’re mostly casuals.’

[80] Mr Mannix recalled a meeting on 26 September 2014 at which Mr Wardrop conveyed an offer from Kings of a flat base rate of pay. While Mr Wardrop had said words to the effect of, ‘Take the offer, it is not too bad, you won’t lose that much’, the Drivers believed this offer was not enough. Mr Mannix’s diary notes also disclosed he had attended another meeting with Mr Wardrop on 30 September 2014, but he could not remember what was discussed. He assumed that two further meetings he had diarised on 30 and 31 October 2014 were to discuss the pay rates being offered by Kings, but he could not recall what was discussed. He and the other Drivers had met with a Union official on 10 November 2014, although he could not recall precisely what was discussed.

[81] Mr Annetts deposed that at another meeting with Mr Milnes and Mr Keipert in October 2014, the Drivers were told that there could be jobs at Goodman Fielder and linehaul. He emphasised that these were not job offers; they were just being told of possibilities of future work. He also recalled Mr Keipert telling the Drivers that if they wanted to take employment with Kings, they would need to resign from DRW. Mr Overton, Mr Annetts and Mr Zinna all recalled the Allocator (Mr Fred Sinadinos) had repeatedly asked the Drivers to sign resignation forms, which were expressed in the following terms:

‘Date :

Dear___________

RE: RESIGNATION FROM POSITION

I hereby give notice of my resignation from the position of driver with DRW Investments. My final working day will be__________

Please pay all entitlements owed to me as at my resignation date.

I would like to thank you for your ongoing support.

Regards,’

Mr Overton said that this form contributed to his understanding that his employment would end. On each occasion he was asked to sign the form letter, Mr Zinna declined to do so. He conceded he had not advised that he did not wish to continue working for DRW, due to taking up a role with Kings. Mr Dyer declined to sign the letter after seeking advice from the Union Organiser, as he was not resigning. Mr Richards indicated that DRW had asked the Drivers to sign a resignation letter, but he was never given a copy. He would not have signed it if he had, because he had not intended to resign. However, he described the transition between DRW and Kings as ‘seamless’. He stressed that he had not been ‘instructed’ to stop attending at DRW’s premises – he had attended the same premises at Cecil Park as usual.

[82] Mr Richards deposed that he had a telephone discussion with Mr Milnes to the effect of the following in October 2014:

Mr Richards:	Is there anything else on offer at DRW, I am concerned about losing my long service leave?
Mr Milnes:	Not really much, there might be some linehaul work coming up, but it will be afternoon shift or night shift. I’ll come back to you about any work that I find.

However, he never heard back from DRW as to any alternative work.

[83] Mr Annetts stated that on a date he could not recall, he received a phone call from Mr Fabre of Kings asking that he attend a one on one interview. This interview did not take place. At a later time, he received a further phone call from Mr Fabre asking if an interview could be arranged at Mr Annetts’ home. This did not occur either. He believed that Mr Fabre was assessing Drivers by attempting to meet them at the Cecil Park site. However, Mr Fabre kept missing him and this was why he was attempting to arrange a meeting. He finally met with Mr Fabre in November 2014, immediately before the date on which DRW would cease providing work to PGH and after the time the Drivers had made the collective decision to take up offers of employment with Kings. Mr Fabre had asked him some general questions. He added that no one from Kings had sat in his truck for a ‘route ride’.

[84] Mr Dyer recalled that some time between September and November 2014, Mr Fabre approached him when he and the other Drivers performed a run to Carnes Hill. They discussed Kings and the work that Mr Dyer did. He had been offered employment with Kings about one month before he started. He and the other Drivers were encouraged by DRW to accept offers by Kings. He had never been offered work on the Goodman Fielder contract or told that he could work on this contract, if he did not accept employment with Kings. He believed that Mr Wardrop was attempting to ‘take credit’ for negotiating the higher wage with Kings. He had never advised DRW that he would accept an offer with Kings, or that he no longer wished to work for DRW.

[85] Mr Overton said that on 1 October 2014, after Mr Fabre had watched him perform his duties, a conversation took place to the effect of the following:

Mr Fabre:	Oh that was quick.
Mr Overton:	This is not a parcel post delivery job.
Mr Fabre:	We are prepared to offer you a job for $24 per hour, 40 hours per week. Is that something you’ll take?
Mr Overton:	That’s not enough money for what I’m on and what I do.
Mr Fabre:	I’ll take it back and speak to my boss.

[86] Some time later, Mr Overton told Mr Fabre that he would transfer to Kings if they ‘match my money’. Mr Fabre said he would get back to him. He called back later and confirmed they would match the same money. On 16 October, Mr Fabre gave Mr Overton a letter of offer from Diana Eydlish, HR Coordinator. As the offer set out the wrong rates of pay, Mr Fabre agreed to have it corrected. When he began working for Kings, he received the same hourly rate. However, he no longer received paid RTA (rest) breaks, a $34 per week forklift allowance or rostered days off. He also worked 40, rather than 38 hours per week.

[87] Mr Richards said that he was interviewed at the Cecil Park site by Mr Fabre on or around 1 October 2014 and that this had been arranged in the course of a phone call a few days prior. After passing a medical exam he was directed to attend, he was given a letter of offer by Kings.

[88] Mr Mannix deposed that a representative of Kings had filmed him working on a run to a site at Baulkham Hills on 29 October 2014. He had not received a job offer from Kings at this stage. He was interviewed by Mr Fabre in the carpark at Cecil Park some time in the following week. Mr Fabre told him that Kings was going to take some Drivers and not others, but, he was one of the Drivers that Kings wanted to hire. Mr Mannix did not accept any offer at this stage, because the pay rates being offered were not high enough.

[89] It was Mr Zinna’s evidence that about one month before Kings were due to take over the PGH contract, he approached Mr Fabre in the yard at Cecil Park and had a conversation to the effect of the following:

Mr Zinna:	Am I going to be offered a job?
Mr Fabre:	Not at this stage. I’ll be able to confirm something in about a month’s time.
Mr Zinna:	That isn’t good enough. I want to know now, can you get on the phone and find out why I am not being offered a job.
Mr Fabre:	I can’t do that, I don’t know why you haven’t been offered a job.

Subsequent to this conversation and a few weeks before Kings took over the PGH contract, Mr Fabre advised Mr Zinna that there were some problems with Mr Zinna’s starting time and that if Mr Zinna remedied this issue, Kings would offer him a job. Mr Zinna observed that no one from DRW management was present during these discussions. He was aware of the ‘route rides’ being undertaken, but he did not take anybody from Kings on his truck.

[90] Mr Mannix said that at a meeting on 19 November 2014, Kings made a further offer to the Drivers, which was not accepted. At a meeting on 20 November 2014 with DRW, he had told Mr Wardrop that he was not happy about losing his entitlements in transferring over to Kings. He recalled the Drivers being asked to sign resignation letters at this meeting. At another meeting on 24 November 2014, Kings advised the Drivers that they would meet the rates for semi-trailer drivers, but not b-double drivers. They were again asked to sign a resignation letter. At a meeting with Mr Keipert, Mr Wardrop and the Drivers on 26 November 2014, the Drivers were again asked to sign a resignation letter.

[91] Mr Richards recalled having telephoned Mr Milnes and asking about the possibility of work within DRW because he was concerned that his service was not long enough to accrue long service leave. He would have stayed working for DRW if he could, so as to accrue the entitlement. He thought it was on this day that he accepted a job with Kings and he started working for Kings on 1 December 2014. Mr Richards added that he had never been told that if he did not accept a role with Kings, he would remain employed by DRW.

[92] Mr Zinna believed that Kings had been worried it would not have enough Drivers. He said that there were three meetings held with Kings prior to his employment transferring. These meetings dealt with rates of pay and terms and conditions of employment to be offered to the Drivers. There was a lot of movement between the Drivers and Mr Fabre over pay rates. Ultimately, he was paid the same rates at Kings, but he lost an entitlement to RDOs. He could not recall a meeting at which Mr Wardrop had said he would act as a ‘go-between’ for rate negotiations with Kings or a toolbox meeting at which Mr Wardrop that the Drivers would shortly be receiving offers from Kings and that if they did not accept them, they would continue to work for DRW on the Goodman Fielder contract.

[93] Mr Zinna described a conversation with Mr Wardrop in the yard at Cecil Park, immediately prior to Kings taking over the contract in words to the effect of the following:

Mr Wardrop:	Have you been offered a job with Kings? You’d be better going to Kings because there is nothing going with DRW, the only possibility is bakery but that only has 8 hour shifts and the money is no good.
Mr Zinna:	Ok thanks.

Nevertheless, Mr Zinna denied he had ever been offered a role with DRW on the Goodman Fielder contract.

[94] Mr Richards referred to the evidence of Mr Wardrop and claimed he had never received the email from Mr Fabre dated 25 September 2014 (see para [17]). He noted that it appeared his email address had been spelled incorrectly. He denied that the Drivers had collectively advised Kings that they would accept offers of employment at a meeting on 31 October 2014. They were not in a position to accept employment, as the pay rates were not finalised. He believed he had accepted an offer by Kings later than this date. Mr Mannix said that the pay disparities set out by Mr Wardrop in this email were calculated on base rates and did not take into account the substantial overtime performed by Drivers.

[95] Mr Annetts said that when his employment with DRW ended, his entitlements were all paid out. They were not transferred to Kings. When he commenced employment with Kings, he was on a six month probationary period. Mr Zinna also observed that he had been placed on a six month probationary period. He subsequently resigned from Kings on 24 July 2015.

[96] In referring to the evidence of DRW, all of the Drivers, except Mr Richards denied having worked on the Goodman Fielder contract. Mr Annetts’ crane truck was specialised and could not carry bread, although he noted that Drivers working on the Goodman Fielder contract may borrow prime movers from the Cecil Park site. The only time Mr Overton had gone to the site was to have a truck serviced. Mr Mannix had gone to the site to pick up a truck being used by drivers at that site.

[97] All of the Drivers emphasised the differences in skills between transporting bread and bricks. Mr Annetts said that in carting bread, the Drivers would pull a closed in trailer. When he transported bricks, he operated a truck and dog, with a crane carrying bricks and pavers. He stated that driving a super dog is different to driving a semi-trailer. Mr Richards observed that if carting bread, he would simply drive up to a dock and the trailer would be unloaded. If carting bricks, he would arrive, talk to the customer, take off the straps of the gate and unload the bricks by forklift. Mr Mannix believed that the different weight of bread and bricks meant that the truck handled differently. Mr Dyer noted that he was required to use a forklift and Hiab crane when delivering bricks.

[98] Mr Overton was aware that Mr Elliott had had discussions with DRW about a new enterprise agreement. He did not believe that there were monthly meetings between Mr Elliott and DRW, because Mr Elliott did not report back to the Drivers. He had always thought that the Amezdroz Agreement carried over to DRW. In referring to the statement of Mr Milnes, Mr Richards said that all Drivers had received a letter of offer when they transferred to DRW in 2013, which set out the Amezdroz Agreement would continue to apply to their employment.

[99] Mr Overton noted that Mr Stormer had been made redundant and had been provided with redundancy entitlements in accordance with the scale set out under the Amezdroz Agreement.

[100] Mr Dyer annexed a payslip to his witness statement dated 3 December 2014, which referred to ‘termination pay’ and annual leave on ‘termination’.

[101] In cross examination, the Drivers were asked about the meeting, in which they were advised of the outcome of the tendering process for the PGH contract in early September. Mr Annetts recalled that Mr Wardrop was there. He did not believe Mr Milnes was there and could not recall if Mr Keipert was present. Mr Overton and Mr Dyer agreed that Mr Wardrop, Mr Milnes and Mr Keipert had been at the meeting. Mr Overton and Mr Annetts recalled it being said that there would not be any redundancies and that DRW would work to facilitate the Drivers with jobs with Kings or redeploy them within DRW’s business. Mr Annetts accepted that this was similar to what Mr Wardrop had said in his statement. Mr Dyer recalled it being said that there would be no redundancies and that DRW would try to get the Drivers work with Kings, but would see what DRW could also offer. He accepted that it was his preference to continue brick carting.

[102] It was Mr Richards’ evidence that the Drivers had been told that, as DRW would no longer provide work for PGH, DRW would ‘try’ to get work with Kings. He could not remember being told that there was work within DRW, specifically on the Goodman Fielder contract. He had not approached DRW staff about employment with DRW after his conversation with Mr Milnes, who had not gotten back to him as he said he would. Mr Richards confirmed his evidence that there were very few meetings with Drivers between 3 September and the end of November 2014, although he did not dispute that there may have been seven meetings in this period. Mr Mannix agreed that it was said that DRW would try to get work for the Drivers with Kings or redeploy them within DRW. He also accepted that the diary notes annexed to his statement merely recorded the time of the seven meetings to which he referred; not what was discussed.

[103] Mr Zinna conceded that given he was aware DRW had lost the PGH contract, it was a matter of logic that an ongoing role with DRW would not be at Cecil Park. He could not recall whether it was said that DRW would try to get the Drivers work with Kings. Nevertheless, it was his and the other Drivers’ preference to continue to do brick cartage work. Mr Zinna agreed he had performed the same work for Kings.

[104] Mr Annetts accepted that Mr Wardrop had done a lot of work in ensuring that the Drivers received the same rate of pay when they were to be employed with Kings and that Mr Wardrop had communicated with Mr Elliott to this effect so that he could keep the Drivers informed of progress. He confirmed that he would not have accepted a job offer with Kings if the pay had been less, especially in view of the fact that he could remain employed with DRW. Mr Mannix did not agree or disagree with a proposition that Mr Wardrop had worked very hard to secure employment for the Drivers with Kings. He had understood that the sticking point was around parity of rates. His main contact was Mr Elliott. Despite this, he had spoken to Mr Fabre directly to tell him that he was not happy with the rate.

[105] Mr Richards and Mr Zinna had heard that Mr Wardrop had worked hard to secure the Drivers work with Kings. Mr Richards had been told this by Mr Elliott and had subsequently seen the emails referring to the pay offers in the preparation for this proceeding. He had ultimately become aware of the parity of rates of pay through a discussion with Mr Fabre. He had had some discussions with Mr Fabre about his rates of pay, but was not sure if DRW had conducted negotiations on his behalf to get the pay rates to parity.

[106] Mr Dyer was aware that there had been discussions between Mr Wardrop and Kings about the pay rates. He said that the rates of pay offered were initially a couple of dollars an hour short of what they had been getting at DRW. He understood that they had subsequently been adjusted to ‘roughly’ the same amount. However, they had lost an allowance of approximately $44 per week.

[107] Mr Overton acknowledged that the initial conversation he had had with Mr Fabre was after Mr Wardrop had relayed Kings’ initial pay offer to the Drivers. While Mr Overton initially said that his conversation with Mr Fabre on 1 October 2014 was the first time he was made aware of a pay offer of $24 per hour, he conceded he, along with the other Drivers and Mr Wardrop had received an email dated 25 September 2014 from Kings setting out that pay offer. However, Mr Overton maintained that he conducted approximately 90% of the negotiations with Kings himself. He believed that he was the only Driver that had direct negotiations with Kings, although he had received the same pay rate in the end. He believed the final negotiation of his pay rate had taken place in his phone call with Mr Fabre (see para [86]). He did not believe enough communication had come from Mr Wardrop, although he accepted that there were seven meetings between DRW and the Drivers between 3 September and 26 November 2014.

[108] Mr Zinna was asked about the conversation which he claimed to have had with Mr Wardrop immediately prior to Kings taking over the PGH contract (see para [93]). When told that Mr Wardrop had left DRW in early November, he confirmed his evidence that the conversation had taken place, but clarified it might have been earlier than he had set out in his statement.

[109] Mr Annetts conceded that while he had not previously carted bread, it would probably not be hard. He acknowledged he would drive a similar rigid vehicle, which he had experience driving. The only thing he was likely to have to learn was the new routes. He could not say if loading and unloading bread would be easier than bricks, because he had never done it. This would require him to be trained. Mr Richards accepted that the Goodman Fielder work was not hard. He had driven a range of vehicles in the course of that work. He had driven a prime mover when working on the PGH contract and had never driven a rigid truck or a pig and dog. He had also driven a prime mover while working on the Goodman Fielder contract. Mr Dyer agreed that he had driven a prime mover with b-double trailers and that these were used on the Goodman Fielder contract. This would have been within his skillset if he worked on the Goodman Fielder contract.

[110] Mr Mannix said that he was not happy when told that DRW had lost the PGH contract, because he liked brick carting and wanted to continue doing this type of work. He could not speak for the other Drivers, but when pressed, agreed that the majority of them preferred to continue this type of work. While he would have driven the same type of truck in carting bread, he believed he would have needed to have been trained; as he had never done dock work. He accepted that if he had stayed working for DRW, this training would have been provided.

[111] Mr Annetts believed he had accepted the job offer about a week before he started to work for Kings. He had not told anyone at DRW about this, because like previous transfers, he had finished with one employer one day and started with a new employer the following day. He had not been forced to take the job with Kings. He agreed that he had not received a notice of termination from DRW. He had accepted a job with Kings after the pay had been adjusted to a rate equal to that paid by DRW. He agreed that he continued to cart bricks for Kings on the PGH contract on similar terms and conditions he had worked under with DRW.

[112] Mr Dyer agreed he had accepted the full time role with Kings, but noted that he was on a six month trial. While he emphasised that he had received termination pay from DRW as marked on his payslip, he had been asked to complete a letter resigning his employment. While acknowledged that no one from DRW had told him he was terminated or advised him of the date his employment would end, he still believed he had been terminated, because DRW did not have a job for him. He agreed that if he had not accepted the role with Kings, he would have remained with DRW. He had not approached anyone from DRW to indicate that he did not want them to negotiate on his behalf with Kings. He did not ‘chase’ DRW about possible roles within the business. While he maintained that they were encouraged to take jobs with Kings, he conceded that he probably did not have to do so. Mr Zinna acknowledged that Kings’ offer was acceptable and he had not been forced to take it. He could have stayed working for DRW and he had not been terminated by DRW. He had not made his own inquiries as to any roles within DRW on the Goodman Fielder contract.

[113] Mr Overton conceded that there had been some discussion about working on the Goodman Fielder contract, but the Drivers were unable to say how many of them could be redeployed, if they did not know how many casual employees were working at the site. Mr Overton conceded he had chosen to work at Kings, but he was waiting from feedback with DRW about other possible jobs and contracts they might have. He accepted he could have approached Mr Wardrop if he did not want to leave DRW. He could not say why he did not approach someone from DRW to keep his job there. He had not been given a notice of termination, although he noted that his payslip set out that he was terminated and he had been given the template resignation letter. Mr Overton initially said that his employment with DRW had come to an end on 28 November 2014 as the DRW contract had ceased and a new contract was taken over by Kings. He now accepted that DRW had not terminated his employment. However, due to some changes to his terms and conditions in employment, Mr Overton believed that there had not been a total transition of his employment to Kings. He acknowledged that instead of the $34 per week forklift allowance, he was getting an allowance of 0.46% of his hourly rate. This was significantly less.

[114] Mr Richards ‘assumed’ that his employment with DRW had finished on 28 November 2014. He emphasised that he had never formally signed a letter to say that he had finished, but acknowledged that he had not been given a letter of termination or otherwise advised of his termination by DRW. He agreed he had chosen to work at Kings and had received the same rate of pay for the same type of work.

[115] Mr Mannix said that he had finished with DRW on 28 November 2014 and he had then started working at Kings. When asked whether he had been given a notice of termination, Mr Mannix referred to the letter of resignation which DRW had asked the Drivers to sign. He accepted that he had not been given notice of his termination by DRW. He emphasised that DRW had asked the Drivers to sign the resignation letter three weeks before they started working at Kings. He agreed he had accepted the role at Kings because the issue around pay rates had been resolved.

[116] Mr Overton believed that Mr Stormer had been on workers’ compensation, but had returned to work on full duties at some point. He conceded was not fully aware of Mr Stormer’s circumstances.

[117] In re-examination, Mr Annetts claimed that he had never been offered an alternative role with DRW. As to whether he had told DRW that he was leaving their employ, by accepting employment with Kings, Mr Annetts said that DRW had known this already.

[118] Mr Overton was shown a copy of his payslip dated 3 December 2014. It set out his final payments for leave, long service leave and ‘termination’ pay. He said that the version he had received had ‘termination payment’ stamped across it. Mr Zinna also provided a payslip dated 3 December 2014, which referred to ‘termination pay’ and annual leave on ‘termination’.

[119] Mr Richards and Mr Mannix said that they understood they would have continued to work for DRW, if they had not commenced employment with Kings on 1 December 2014. Mr Mannix presumed that he would have been performing work on the Goodman Fielder contract. He had stopped working for Kings two weeks after he started, because he was not happy working there. Mr Dyer and Mr Zinna said that they did not know, at the time, what role they would have taken on at DRW had they decided not to accept the offer with Kings, as and no one had spoken to them about it.

SUBMISSIONS

For the applicant

[120] In written submissions, Mr Baroni described the circumstances in which DRW came to service the PGH contract after Wettenhalls was wound up in January 2013 and how Kings had subsequently been successful in tendering for the contract. In late 2014, DRW had informed the Drivers, as part of a group of twelve employees, including ten truck drivers, who were specifically employed to service the PGH contract in New South Wales, that there was an outcome of the tendering process and asked them to attend a meeting on 3 September 2014. At this meeting, the Drivers were advised that their roles servicing the PGH contract would no longer be at Cecil Park after 28 November 2014 and that DRW would seek to redeploy them within its own business. The Drivers were specifically told that there would be no redundancies.

[121] Mr Baroni submitted that the Commission would be satisfied that the applicant was an ‘instrumental and driving force’ in obtaining ‘acceptable employment’ for the Drivers, in accordance with s 120(1)(b)(i) of the Act. Mr Baroni summarised the applicant’s evidence in relation to Mr Wardrop’s interactions with Kings and the Drivers in September and October 2014. He submitted that this demonstrated that the offers of employment by Kings were a direct result of the conscious and intended acts of DRW; See: FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 (‘FBIS v MUA’) and Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking [2015] FWC 5016 (‘Glen Cameron’).

[122] Mr Baroni acknowledged that the Drivers had not advised DRW that they had accepted offers with Kings, but they accepted verbally on 31 October 2014 and continued working for DRW until 28 November 2014. DRW was informed on 2 December 2014 that the Drivers would not be tendering their resignations, as they had commenced employment with Kings on 1 December 2014.

[51] A further action undertaken by the Respondent, reflected in the evidence of Mr Christmas, was to request that ACG make arrangements for ACG to meet the Respondent’s employees through the Respondent, in order that the Respondent could manage its obligations under the FBIS Agreement, a request not acceded to by ACG, which made its own arrangements to contact employees and offer (or decline to offer) employment to the employees. Whilst the Respondent sought to play a role in arranging contact between ACG and its employees, it in fact played no role other than the provision of contact details to ACG.

[52] The only other additional actions taken by the Respondent, as reflected in the evidence of Mr Christmas were:
● its unsuccessful attempt to engage ACG in discussions directed to a commercial agreement between the two companies in relation to the employees’ accrued leave and accrued service with the Respondent, on the basis of its view that “[f]or an offer from ACG to constitute acceptable alternative employment, the employee’s continuity of service needs to be recognised by ACG, including all leave liabilities”; and
● its provision to ACG of a copy of the FBIS Agreement which ACG had already obtained from the Commission’s web-site.

[53] Each action was directed to ACG offering employment which met the requirement of “acceptable employment” for the purposes of s.120 of the Act and did not constitute action to obtain the employment, acceptable or otherwise.

[54] In our view, the limited actions of the Respondent, which did no more than establish contact between its employees and ACG, with the effect that employees were able to participate in the recruitment processes of ACG falls well short of action which “causes acceptable alternative employment to become available to the redundant employee” and the Respondent was not a “strong, moving force towards the creation of the available opportunity” [endnotes omitted].’

[177] This decision was the subject of an appeal to the Full Court of the Federal Court and, in a judgement of that Court, Jessup, Bromberg and Rangiah JJ, their Honours dismissed the appeal; See: FBIS v MUA. After discussing the earlier authorities, the Full Court found as follows at paras [20-[22]:

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

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

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

21. It did become the subject of legislation with the enactment of the FW Act in 2009. In the way that s 120 is drafted, the matters set out in subs (1) are, as the Full Bench in the present case recognised, jurisdictional facts for the exercise of the discretion arising under subs (2). As such, whether the applicant obtained acceptable alternative employment is now directly justiciable in this court in an application of the present kind. It is alleged that the Full Bench wrongly declined jurisdiction under s 120. If that allegation were a good one, mandamus would be the appropriate remedy. In our view, however, the allegation should not be accepted.

22. The 49 employees did obtain employment with ACG. It seems to be uncontentious that this employment was acceptable. But, on the facts referred to earlier in these reasons, we would not find that the applicant obtained that employment for those employees. It may have facilitated the opportunity for them to apply for employment with ACG, but what it obtained for them was something less than offers of employment which they could accept or decline as a matter of choice.’

Meaning of ‘other acceptable employment’

[178] Similarly, this Commission and its predecessors have frequently been asked to consider the meaning of other ‘acceptable employment’ in the redundancy context. The underlying principle as to what is ‘acceptable employment’ does not mean it must be acceptable to the employee. Put another way, what is ‘acceptable’ cannot be viewed through the prism of what an employee subjectively believes is acceptable to them. The test is an objective one. In Derole Nominees, a Full Bench of the AIRC said at 128:

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

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

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

[179] In Oscar Oscar, Asbury C (as she then was), said at paras [18]-[19]:

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

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

[180] SDP Watson in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia, 21 November 2006[PR974699] (‘Feltex’) said at a para [33]:

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

[181] Secondly, ‘acceptable employment’ is not synonymous with ‘identical employment’. In this respect, I refer to, and respectfully adopt the comments of SDP Watson in Feltex:

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

[182] Thirdly, the fact that one or more employees in a group of redundant employees ‘accepts’ alternative employment does not make the employment ‘acceptable employment’ for all of them. In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:

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

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

Issues to be determined by the Commission

[188] The Union submitted that the determination of this matter should be resolved by the Commission answering three questions:

1. Which redundancy scheme covered the Drivers?
2. Were there any internal roles offered to the Drivers?
3. Did DRW obtain employment for the Drivers?

[189] However, as I foreshadowed earlier, it seems to me that there is a fourth and more fundamental question to be answered in this case which, if answered in the negative, would make it unnecessary to answer the other three questions. This question is: Were the Drivers and/or their roles actually made redundant by DRW, thereby triggering a prima facie entitlement to redundancy pay?

[190] I shall come to this question shortly, but before doing so, I will deal with the issue of which redundancy scheme covered the Drivers. This question can be put another way by determining whether the Amezdroz Agreement covered the Drivers at the relevant time. The Union was firmly of the opinion that it did. Initially, Mr Baroni did not agree. However, during the course of final submissions, Mr Baroni conceded that at the relevant time, the Drivers were covered by the Amezdroz Agreement. That concession was appropriate and I accept it as the correct legal position. Such a conclusion means that if the Drivers were entitled to redundancy pay, the payments would be based on the enhanced scale of redundancy pay, under the Amezdroz Agreement at cl 37 (see para [3]).

[191] That said, in my opinion, cl 37 must be read in conjunction with the NES’s redundancy provisions. So much so is patently clear from the opening words of cl 37 – ‘Redundancy is a matter covered by the NES’ – and the following sentence that this clause ‘supplements’ the entitlements under the NES.

[192] When viewed in this way, it is open to conclude that both cl 37 and the NES are relevant to determining this application. It is curious, at least from the Union’s perspective that Mr Warnes had argued that s 119, and consequently s 120 of the Act, were not relevant and had no work to do in this case. Presumably this submission was made because of the higher redundancy payments available under the Agreement. However, it would also mean that all DRW had to establish was that the Drivers had been ‘reasonably redeployed for suitable work’ under cl 37 and did not have to satisfy a second test that it had ‘obtained’ the ‘other acceptable employment’ for the Drivers, as required by s 120(1)(b)(i) of the Act. In other words, the threshold test DRW had to meet was lower under the Agreement, than under s 120 of the Act.

[193] It is arguable, I concede, that it is not entirely clear that the Agreement’s exclusion of an entitlement to redundancy (as a last resort) because of reasonable redeployment for ‘suitable alternative work’ means both that the ‘alternative work’ is work within the business or work ‘obtained’ by DRW with another employer. In my view, either interpretation is applicable to the present circumstances.

[194] Two other considerations should be stated here. Firstly, it is unlikely the legislature intended an enterprise agreement’s redundancy provisions would override or displace the Act’s NES provisions dealing with the same subject matter. Certainly, an enterprise agreement’s redundancy provisions can be more generous than the NES, but the fact that an enterprise agreement cannot contain provisions less than the NES, supports the proposition I have just described. Secondly, the issue of what scale of redundancy payments should apply is not a factor in determining whether the Drivers were, in fact, made redundant by DRW. I consider that both cl 37 of the Agreement and s 119 of the Act are predicated on one highly significant question. That is, did DRW terminate the Drivers’ employment for reasons of redundancy? In my view, the answer to that question must be ‘no’. I now develop my reasons for this finding.

Were the Drivers and/or their roles redundant?

[195] Surprisingly, the answer to this fundamental question can be found in the evidence of the Drivers themselves. It is patently clear from their evidence that as early as the first meeting on 3 September 2014, they were informed that as a result of the recent loss of the PGH contract, no Driver would be out of a job and there would be no redundancies. Alternate employment opportunities were to be explored with Kings or the Drivers would be redeployed to other work within the DRW business. There was no evidence of these options being changed through the process. Indeed, the first option is exactly how things turned out.

[196] Most of the Drivers agreed they had not been terminated by DRW. Some were equivocal on the issue. Some of them pointed to the words ‘termination’ and ‘termination pay’ on their final DRW payslips. In my view, no reliance can be had on the terminology of the payslips as demonstrating the Drivers were ‘terminated’ by DRW. The use of these words was simply a payroll function, which was entirely neutral as to who had initiated the termination of employment. The words merely indicated that a termination of employment simpliciter had occurred, which triggered the payment of outstanding entitlements, which would ordinarily be paid, irrespective of the initiator of the termination.

[197] Both Mr Zinnaand Mr Annetts said they knew if they did not accept employment with Kings, they could stay at DRW. Both Mr Richards and Mr Mannix gave evidence that if they had not accepted employment with Kings, they would have continued working for DRW. As a result of the timing of these and other proceedings, four of the Drivers have been effectively employed by Kings for over twelve months (Mr Zinna resigned on 24 July 2015 for personal reasons). There was no evidence that any of them (save for Mr Mannix, who found another job after two weeks) were dissatisfied with their employment terms and conditions after working for Kings for this period of time. Complaints that they were on a six month probationary period with Kings, which meant the offer was not suitable alternative employment, are now of limited weight as they have all exceeded the six months period, without any repercussions.

[198] Significantly, there was no evidence that the Drivers felt coerced or pressured to accept employment with Kings. It was always an informed choice as to whether they would refuse or accept. On the contrary, the evidence is that the Drivers had all expressed a preference for continuing to work on the PGH contract, subject to the rates and conditions being similar to that which they enjoyed at DRW.

[199] Much was made by the Union of the fact that none of the Drivers had resigned from their employment, either in writing or informally. In my opinion, given all the circumstances, it is not to the point that the Drivers did not formally resign. Of course, it might have been ‘tidier’ had they done so. However, the fact that they did not resign, does not alter the strict legal position that there were no terminations at the initiative of the employer.

[200] In essence, the practical reality of what occurred was that all of the Drivers voluntarily left employment on 28 November 2014 with all of their outstanding entitlements paid out. They all commenced employment with Kings the very next working day, 1 December 2014. DRW was not even officially informed that they had left. They simply did not turn up for work with DRW on 1 December 2014. This must lead to the conclusion that the real and effective initiators of their terminations of employment must have been the Drivers themselves, or at the very highest, that there were mutual terminations of employment or ‘implied resignations’.

[201] In disputes concerning the alleged redundancy of an employee/s, I always commence from the standpoint that standard redundancy payments were originally introduced in the 1980s for the beneficial purpose of assisting employees, who are genuinely made redundant at the initiative of the employer. That underlying principle has not been altered or undermined by the passage of time and continues to be recognised, for example, in the definition of a ‘genuine redundancy’ found in s 389 of the Act and the wording of 119 itself.

[202] Of course, I readily acknowledge that the Drivers in these circumstances lost their tenure for the purposes of future redundancy pay entitlements and long service leave (although I note that all but one of the Drivers had in excess of five years’ service and accrued long service leave was paid out by DRW). I have taken this matter into account.

[203] Again, it must be made clear that redundancy payments are for employees who suffer detriment from the loss of employment, incurred through no fault of their own. Speculation that an employee may be made redundant in the future is a hypothetical assumption. Employees may continue to work until they retire or they may be made redundant within the first 12 months of new employment or they may work for a small business exempt from paying redundancy pay. This will be the case in many employment situations, simply because an employee, for whatever reason, chooses to move from one employer to another. It is trite to observe that the notion of life time employment is a very rare occurrence in the modern Australian workplace. I note that in his 27 years of working on the PGH contract, Mr Zinna has worked for seven employers: Linfox, TNT, Toll, PGH, Wettenhalls, DRW and Kings.

[204] This factor was considered by Gregory C in Ryans Freighters at para [16]:

‘[16] However, the fact he received a payout of his annual leave in advance of actually taking that leave does provide some additional benefit to him. Mr Campbell also raised issues about whether he was likely to remain in ongoing employment with Allens Freight, given that he was initially employed on a six-month trial period. However, remaining in ongoing employment will always be a concern for any employee, and clearly there are no guarantees in this regard. I consider his concerns in this regard are little different from when he was employed by Ryans Freighters. Future ongoing employment opportunities can never be guaranteed and will always be subject to a range of factors impacting on both the individual employee and the business.’

[205] Given all the relevant circumstances in this case leads me to only one conclusion. There was no redundancy of the Drivers at the employer’s initiative. The Drivers had the option of either remaining at DRW, most likely on the Goodman Fielder contract or electing to be employed by Kings, on the PGH contract. I do not accept that any of the Drivers really wanted to stay at DRW. Even in the face of their legitimate concerns over losing their long service leave accruals, Mr Mannix and Mr Richards ultimately decided to work with Kings.

[206] Nor do I accept the submission that the Drivers were never offered firm or positive redeployed positions with DRW. The fact that DRW had put ‘on hold’ the engagement of permanent drivers for the Goodman Fielder contract was an obvious indication of the likelihood of the jobs being offered to them. Indeed, the Drivers’ evidence was that they did not wish to work the ‘bread run’. They made clear their preference for continuing on the PGH contract from the very outset of the negotiations. For reasons to be shortly discussed, DRW’s focus was on securing their preferred work. That said, it seems to me that there was not much point in firming up any offers of redeployment when it was obvious they all wished to work for Kings, in any event.

[207] To my mind, the evidence is abundantly clear. At no time did any of the Drivers’ employment come to an end at the initiative of DRW for reasons of redundancy; See: s 119 of the Act. For a redundancy to have taken place, it must be at the initiative of the employer and constitute a dismissal of the employee in the ordinary sense.

[208] On the Drivers’ own evidence, they had clearly understood that their employment with DRW would be ongoing in the event they rejected the offer of employment with Kings. In short, no Driver had lost their job. They all had a deliberate, unrushed choice of ongoing employment with DRW or Kings and deliberately exercised that choice, without any pressure or coercion.

[209] In my view, it must follow, that this application should be dismissed on the jurisdictional grounds that the Drivers and their roles were not made redundant by DRW. An application of this kind under s 120 must be underpinned by a jurisdictional factual finding that an employee/s had an entitlement to redundancy pay, either under an enterprise agreement, or the NES under s119 of the Act.

[210] In my judgement, it is an unassailable proposition that if this jurisdictional prerequisite is absent, then two findings must logically follow:

the Drivers had no entitlement to redundancy pay under the Agreement and the NES; and

an application to reduce an entitlement which does not exist cannot possibly succeed.

[211] In my opinion, this situation is analogous to that considered by VP Watson in CAE Australia and I respectfully see no basis to make findings contrary to His Honour’s conclusions made in that case, which I set out at para [168] above.

[212] These findings no doubt result in a curious and unusual outcome in which Mr Baroni, on behalf of DRW, sought to have his client’s application dismissed. While Mr Warnes described this submission as ‘bizarre’, his colourful characterisation does not render the submission unsound. It is the correct legal approach.

[213] For the above reasons, I dismiss this application. However, even if I am wrong about this conclusion, I am satisfied that DRW had ‘obtained other acceptable employment’ for the Drivers and in the exercise of the Commission’s discretion under s 120(2) of the Act, I determine to reduce the amount of redundancy pay, otherwise payable to the Drivers, to nil. These are my reasons for so determining.

Did DRW ‘obtain other acceptable employment’ for the Drivers?

[214] In my view, the Drivers unreasonably and unrealistically downplayed the pivotal role Mr Wardrop had in ‘obtaining’ new employment for them with Kings. This involvement was critical in two significant respects:

He directly negotiated with Kings to achieve comparable base rates of pay and similar conditions for the Drivers.

He was instrumental in convincing Kings that they should make offers of employment to all ten Drivers, in circumstances where Kings were less than enthusiastic about engaging four of them. I note that this appears to be supported by Mr Zinna’s evidence of his conversation with Mr Fabre (see para [89]).

[215] In addition, the evidence disclosed the following:

DRW attended joint meetings with Kings and the Drivers;

DRW had seven meetings with the Drivers between September and November 2014 to discuss their concerns;

DRW prepared and provided Kings with feedback forms on the Drivers’ history, skills and performance;

DRW arranged for ‘route rides’ with the Drivers prior to their employment with Kings;

DRW arranged interviews with Kings and the Drivers;

there were numerous email exchanges between DRW and managers of Kings;

a number of Drivers communicated directly with Mr Wardrop about their concerns with being redeployed within the business, or the implications of becoming employees of Kings; and

Mr Wardrop communicated updates of his negotiations with Kings to the Union’s site delegate.

[216] Where was the Union during all of this? There was no evidence of the Union Official Mr Olsen’s or Delegate Mr Elliott’s involvement, let alone active involvement in negotiating with Kings (or DRW) on behalf of the Drivers. It appears they only attended the first meeting on 3 September 2014 and another on 15 September 2014. It seems that the Union Official was content to allow DRW, through Mr Wardrop, to conduct the negotiations with Kings. This should not necessarily be seen as critical of the Union’s role. It appears it recognised the practicality and influence of DRW in negotiating with Kings. However, it is instructive that neither the Union Official or the Delegate was called to give evidence of their involvement in the negotiations. It is open for the Commission to draw a negative inference that their evidence would not have assisted the Drivers’ case (Jones v Dunkel).

[217] There were various descriptions ascribed to Mr Wardrop’s role, such as it being facilitative; that he was merely a conduit between the Drivers and Kings; that he paid ‘lip service’ to the Drivers’ concerns; he embellished his role; that he was a bargaining representative. While Mr Mannix provided his diary as demonstrating when meetings were held, he also agreed that Mr Wardrop ‘did the majority of the work’. There was some evidence of the Drivers’ direct contact with Mr Fabre of Kings. Mr Overton was more critical and said Mr Wardrop ‘did hardly anything’ and that he had negotiated his own rate of pay with Kings with his own contribution to the negotiations amounting to 90%.

[218] To their credit, other Drivers were more objective and realistic in their assessments of Mr Wardrop’s involvement. Mr Annetts believed Mr Wardrop ‘did a lot of work’ in securing the jobs for Drivers with Kings. Mr Richards and Mr Zinna agreed that they had heard that Mr Wardrop had worked hard in securing their jobs at Kings. Mr Wardrop rejected the suggestion he was no more than a ‘mouthpiece’ or a ‘representative’ of the Drivers collectively. He had done more than ‘facilitate’ negotiations; DRW was directly negotiating the Drivers’ employment arrangements with Kings.

[219] In my assessment, the preponderance of the Drivers’ evidence supports a finding that Mr Wardrop was instrumental in ‘obtaining’ acceptable work for the Drivers. I agree with Mr Wardrop’s description of his role. I believe that those Drivers who were either ambivalent about Mr Wardrop’s role, or critical of it, embellished their evidence or were less than forthcoming, for the express purposes of bolstering their argument that DRW had not ‘obtained’ the alternative work.

[220] In particular, I reject Mr Overton’s claims that he had negotiated his own rate directly with Kings. Even if Mr Overton believed his own analysis, it is curious that it was no different to the rates agreed for all the Drivers. In any event, Mr Overton said he negotiated his rate a week after Kings had agreed to parity for all of the Drivers, which somewhat discredits his claim. Mr Mannix’s diary notes record only that meetings had occurred, with no detail of what was discussed. Accordingly, reliance on these diary notes were unhelpful and prove no more than meetings were held on certain days. In respect to the contact with Mr Fabre, I note that Mr Fabre had no authority to make decisions on behalf of Kings. Mr Jones, Kings’ Operations Manager, had insisted that all relevant negotiations were channelled through him.

[221] For the abovementioned reasons, I am satisfied that DRW ‘obtained’ alternative employment with Kings for all of the Drivers, within the meaning of s 120(1)(b)(i) of the Act.

Was the employment with Kings ‘acceptable employment’?

[222] Obviously, this is not a case where the employees had rejected the offers of employment with Kings on the grounds it was neither ‘acceptable’ or ‘suitable’. Something positive must be said about the fact that all of the Drivers accepted the new employment and have continued to work for Kings now for over twelve months (save for Mr Zinna). Isn’t this a reliable objective indicator of the employees’ acknowledgement of the acceptability of the employment? As Bissett C said in VicStaff: ‘Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’

[223] In addition, it was made plain from the outset of the negotiations that all of the Drivers’ preferred option was to continue working on the PGH contract with Kings. There was never any real desire of any of the them to be redeployed within DRW’s business, which was most likely have been on the Goodman Fielder contract. Moreover, the evidence demonstrated an apparent, but odd, disdain for working on the ‘bread run’. It is not entirely clear to me why this would be so. Was the evidence in this respect tailored to demonstrate that redeployment was not ‘suitable’ or ‘acceptable’ work in any circumstance, thereby triggering a redundancy payout?

[224] Given that redeployment to the Goodman Fielder contract involved no loss of earnings, conditions, seniority or accrued entitlements and on any objective basis, must be no more arduous than carting bricks and pavers (to which a number of them agreed), I am puzzled by the Drivers’ antipathy to that option. In addition, if the ‘bread run’ required different runs or offloading methods, then training would have been provided. Moreover, most of the Drivers accepted that the Goodman Fielder work was within their skillset.

[225] As I said earlier, I do not accept as genuine, the rejection of remaining employed by DRW because there were no ‘firm’ or ‘actual’ offers of redeployment made by DRW. It was made absolutely clear that no Driver would lose their job, if they chose not to be reemployed by Kings. In any event, as DRW had a number of different contracts, like similar companies in the transport and logistics business, where there is always the possibility of loss of contracts, there was also the real and expected likelihood that Drivers could move from run to run delivering different products, as contracts were won and lost.

[226] The fact that some of the Drivers had worked for decades on the same contract does not alter the underlying contractual characteristics of this industry. Putting all this aside, there were the views of the Drivers themselves. Mr Richards and Mr Annetts agreed, in cross examination, that the work was similar and Mr Richards had actually worked previously on the Goodman Fielder contract.

[227] As to the new employment with Kings, the following characteristics of the work compared to when the Drivers worked at DRW were:

the work was exactly the same (‘identical’) because it was work on the PGH contract;

no change in location, runs or delivery methods;

the same base rate of pay;

equivalent conditions of employment; and

the Drivers had worked on this contract for many years.

[228] The differences between the work at DRW and Kings were:

a different employer;

loss of seniority for the purposes of accruing future redundancy benefits;

a 40 hour week with no RDOs; and

a six month probationary period.

[229] There was some debate as to whether there was any loss of entitlements due to the 40 hour week and the alleged loss of a weekly allowance of $34. Mr Baroni provided a comparative table which demonstrated that the differences were minimal and Mr Overton’s claims of his losses were greatly exaggerated; See: Annexure A. I am prepared to accept that Mr Overton may have been confused with different wording in the enterprise agreements which had the same outcome.

[230] In summary, I am satisfied on an objective analysis, that the employment obtained by DRW for the Drivers at Kings was ‘acceptable employment’, within the meaning of s 120(1)(b)(i) of the Act. Alternatively, I am satisfied that the new employment with Kings was ‘suitable alternative’ work, within the meaning of cl 37 of the Amezdroz Agreement (assuming that instrument’s redundancy provisions applied either exclusively, or in conjunction with s 120 of the Act).

[231] It is not strictly necessary for me to determine whether the redeployment to work within the DRW business was ‘suitable alternative work’, within the meaning of cl 37 of the Amezdroz Agreement, because redeployment was not taken up by any of the Drivers. Nevertheless, had I been required to do so, I would have found that such work was ‘suitable alternative’ work within the terms of the Amezdroz Agreement.

[232] For the reasons herein expressed, I would make orders reducing the Drivers alleged redundancy pay entitlements to nil, pursuant to s 120(1)(b)(i) of the Act, if requested by DRW to do so. However, I note the practical effect of such orders is the same as the dismissal of this application, which I propose to do by an order issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Baroni for DRW Investments Pty Ltd.

Mr T Warnes for the Transport Workers’ Union of Australia.

Hearing details:

2015:

Sydney,

9, 11 November.

Printed by authority of the Commonwealth Government Printer

DRW Investments t/as Wettenhalls v Timothy Richards & Others

[2016] FWC 461

22 JANUARY 2016

DECISION

THE EVIDENCE

For the applicant

Mr Bryan Wardrop

Mr Peter Milnes

The respondents

SUBMISSIONS

For the applicant

Meaning of ‘other acceptable employment’

Issues to be determined by the Commission

Were the Drivers and/or their roles redundant?

Did DRW ‘obtain other acceptable employment’ for the Drivers?

Was the employment with Kings ‘acceptable employment’?