Er 24 Pty Ltd T/A Er 24 v Mr Frederick Rieger

[2017] FWC 405

[2017] FWC 405

FAIR WORK COMMISSION

DECISION

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

ER 24 Pty Ltd T/A ER 24
v
Mr Frederick Rieger
(C2016/5777)

COMMISSIONER SPENCER BRISBANE, 26 MAY 2017

Variation of redundancy pay.

[1] This Decision arises out of a number of applications made by ER 24 Pty Ltd (the Applicant) for orders varying redundancy pay said to be payable to a number of former employees. These reasons should be read in conjunction with my substantive reasoning in ER 24 Pty Ltd T/A ER 24 v Mr Stephen John Brown[2017] FWC 397 1. That decision is issued with, and forms part of, each of the Respondents who were employed as paramedics. That decision also includes the submissions of ER24 relevant to the Respondent in these matters. Mr Rieger made individual submissions as below.

Applicant’s submissions

[2] The Applicant submitted the Respondent was employed by the Applicant in a full time paramedic position at Hay Point Mine and was paid an hourly rate of $43.50.

[3] The Applicant submitted that the Ambulance and Patient Transport Industry Award 2010 applied to the Respondent’s employment.

[4] The Applicant submitted the Respondent had served two (2) years and four (4) months’ service.

Respondent’s submissions

[5] The Respondent submitted he was employed by the Applicant as a stand-alone Paramedic at the Hay Point Coal site.

[6] The Respondent accepted a new position as Paramedic Emergency Services Officer with MSS after he applied through SEEK, which required further cost and time. The new position included being a Paramedic, Firefighter, Security Officer and a Return to Work Coordinator. This position was different from the original Paramedic position held with the Applicant.

[7] Upon commencement of the new position with MSS, the Respondent submitted he was required to have the following additional qualifications which were not required with the Applicant:

• Certificate 3 Mines Rescue;



• Conduct Fire Team Operations;



• Coal Board Medical-Rescue certificate;



• Pre-Employment Functional Assessment (PEFA);



• Immunisations against Hepatitis A, B and Tetnus;



• Membership with a professional body (i.e. Paramedics Australasia);



• Australian Driver’s License (Manual, Medium Rigid);



• Security Licensed pursuant to the Security Providers Act 1993 (Qld);



• Rehabilitation and Return to Work Coordinator Certificate; and



• Computer literacy in Microsoft Office suite.

Respondent’s submissions on ordinary and customary turnover of labour

[8] The Respondent submitted he was not terminated due to ordinary and customary turnover of labour.

Consideration

[9] In the reasoning provided in the decision of Mr Brown, I find that there is an entitlement to redundancy pay as per s.119.

[10] In considering making this order, it must be determined as per s.120(1)(b) whether the employment was obtained by the Applicant and that the employment was acceptable.

[11] As I have summarised in Brown, the Applicant did not “obtain” the current employment of the Respondent, and therefore it is not necessary to consider whether that employment is acceptable under s.120.

Conclusion

[12] Accordingly, for the aforementioned reasons I am not satisfied in accordance with s.120 (1)(b)(i) of the Act that I should exercise the discretion pursuant to s.120(2) of the Act to reduce the amount of redundancy pay.

[13] I Order accordingly.

COMMISSIONER

 1   A copy of the decision [2017] FWC 397 was provided to the Respondent by email.

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