Er 24 Pty Ltd T/A Er 24 v Mr Nathaniel St Leger

[2017] FWC 385

[2017] FWC 385

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 Nathaniel St Leger
(C2016/5751)

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 Ms Susan Mary Berthun [2017] FWC 383 1. That decision is issued with, and forms part of, each of the decisions of the Respondents who were employed as security. That decision also includes the submissions of ER24 relevant to the Respondent in these matters. Mr St Leger made individual submissions as below.

Applicant’s submissions specifically on Respondent

[2] The Respondent, Mr St Leger, was employed by the Applicant in a full-time security position at Hay Point Mine paid an hourly rate of $28.00 per hour.

[3] The Security Services Industry Award 2010 (the Award) applied to the Respondent’s employment.

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

[5] Due to the Respondent’s length of service being more than two (2) years but less than three (3) years the Respondent is entitled to six (6) weeks redundancy payment. Based on the Respondent’s base rate of pay and their ordinary hours worked the redundancy payment would equate to $7,056.00.

[6] The Applicant submitted they undertook the following steps for the Respondent in obtaining acceptable alternative employment with CPA:

“a. The steps outlined in these submissions;
b. Email correspondence from the Applicant to the Respondent as per the attachment marked TW55 in Mr Wicht’s Affidavit which provides that the positions for CPA or MSS must be applied for directly through the Seek advertisements and that there is no missing requirements for the Respondent’s transfer to CPA or MSS; and
c. The Respondent had obtained acceptable alternative employment with CPA as per attachment marked TW102 in Mr Wicht’s Affidavit.

314. The alternative acceptable employment that was offered and accepted by the Respondent was as follows:
a. Full-time security position;
b. Located at Hay Point Mine;
c. The Applicant has made every reasonable enquiry as commercially permissible and made a great effort in verifying the rate of pay. The draft orders sought in relation to this will illuminate and verify the Applicant’s submission that the Respondent is on or around $28.00 per hour base rate of pay with CPA;
d. The Respondent works 84 hours per fortnight as required by the BMA contract; and
e. The duties the Applicant believes the Respondent undertakes with CPA based on the scope of service for the unsuccessful BMA tender is as follows:
i. Execute site access duties through the effective use of the company’s training and access management systems (TAMS);
ii. Maintain high level customer service throughout interactions with site personnel and visitors;
iii. Complete and communicate all scheduled and requested TAMS reports to the sites;
iv. In cases of security threats act within the accountabilities of the respective sites security processes;
v. Fulfil front of house accountabilities during site closures and emergency activations;
vi. Execute patrols of the sites boundary and internal facilities; and
vii. Monitor sites CCTV network.”

Respondent’s submissions

[7] The Respondent provided the following submission to the Commission:

“This letter is in regard to case (C2016/5751) Redundancy pay from ER24. Prior to ER24 losing the contract I was a full time employee for 2 ½ years at Hay Point Coal Terminal. I was originally paid at $32 hr but was lowered to $28 hr (as were all employees) when ER24 changed our rate of pay mid-contract. All employees were asked to sign a new contract with a new hourly rate of pay even though our current contract wasn’t expired. We were also told if you didn’t sign the new contract we would still be paid at the new lower hourly rate, which is exactly what happened.

We worked a 7 days on 7 days off roster with 12 hour shifts. In one week you would work a total of 84 hours. The next week you would be off so no hours worked, so it averaged to 42 hours a week. Our duties were everything from running the security gatehouse, mobile(vehicle) patrols, foot patrols, front desk customer service, answering phones, processing all site visitors, vehicle and truck searches (to check for BMA site compliancy) helping contractors with any and all site related issues and well as helping paramedics with drug and alcohol testing (if needed).

When ER24 was unsuccessful at retaining the contract they did not help us find new employment. We were told CPA Australia was awarded the new contract and they would take over July 1st 2016. Everyone then took it upon themselves to contact CPA and apply for the jobs we were currently working under ER24. IF any help was given it was from the client (BMA) by them telling us to apply with CPA to help continued employment at Hay Point. No help was given from ER24.

I have included the two requested payslips from ER24, a copy of the cover letter I sent to CPA when I originally applied for employment with them. I also have included a copy of my Tax Group Certificate for your review. The group certificate caused some confusion when I did my taxes this year with H & R Block. If you look at the “Type Box” you can see it is marked with a “R”. H & R Block explained to me that this means I was made Redundant I was paid a redundancy after ER24 lost the contract. This did not happen. I was paid out my unused annual leave and that was it, no redundancy. H & R Block said ER24 should not have marked the group certificate in this way and it was incorrect.

I feel I am entitled to a “Redundancy” pay out quiet simply because it is in our contract and because my new employment was up to me to attain and had nothing to do with ER24. I fall into the more than 2 years but less than 3 years of service category and should be paid (according to the contract) 6 weeks pay.”

Conclusion

[8] On the reasoning provided in the decision of Ms Berthun, I find that there is no entitlement to redundancy pay under s.119. The effect of clause 12.5(b) of the Award is that s.119 does not apply.

[9] Accordingly, on the evidence before the Commission, the Respondent has agreed to other acceptable employment with an incoming contractor and the Applicant has paid to the Respondent his accrued statutory and award entitlements on termination of the Respondent’s employment.

[10] Mr St Leger, on the evidence of the Applicant, has employment substantially similar to his employment under the Applicant, being employed on a similar rate of pay and rostered hours.

[11] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Mr St Leger’s current employment is substantially the same as his previous employment with ER24. It is clear on the basis of the authorities I have summarised in Berthun that the enquiry is not whether the employee in question considers the employment acceptable, but rather, whether it is objectively acceptable. There is, on the evidence, a difference between the two positions in some respects. On fine balance, I am satisfied that the new employment is other acceptable employment with the incoming contractor that has been agreed to by Mr St Leger.

[12] I Order accordingly.

COMMISSIONER

 1   A copy of the decision [2017] FWC 383 was provided to the Respondent by email.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR589520>