ER 24 Pty Ltd T/A ER 24 v Mr Paul Andrew Fleming

[2017] FWC 407

[2017] FWC 407

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 Paul Andrew Fleming

(C2016/5780)

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 decisions of the Respondents who were employed as paramedics. That decision also includes the submissions of ER24 relevant to the Respondent in these matters. Mr Fleming made individual submissions as below.

Applicant’s submissions

1. The Applicant submitted the Respondent was employed as a full time Paramedic at Goonyella Riverside Mine and was paid an hourly rate of $45.79 per hour.

1. The Applicant submitted the Ambulance and Patient Transport Industry Award 2010 applied to the Respondent’s employment.

1. The Applicant submitted the Respondent had served five (5) years and 1.5 months’ service with the Applicant. 

Respondent’s submissions

1. The Respondent agreed with the Applicant submission in relation to his term of employment and rate of pay.

1. The Respondent submitted the amount he was entitled to as a redundancy payment was $19, 231.80.

1. The Respondent submitted that he holds the position of Team Leader of the Paramedics at Goonyella Riverside as an Advanced Care Paramedic. In this new position, the Respondent submitted his rate of pay, hours of duty and location has remained the same as his original position with the Applicant.

1. The Respondent submitted he is entitled to the redundancy pay due to the following reasons:

·   He was required to submit his application to MSS as well as all the necessary paperwork;

·   He was required to conduct a physical fitness assessment and a rescue medical;

·   His medical cover which related to his original role did not cover him for his new role and was required to complete an extra medical at his own expense;

·   His new title was Paramedic ESO, which was different to the position originally held with the Applicant; and

·   He was required to gain a Certificate 3 in Mines Rescue, Return to Work Rehabilitation Co-ordinator and Fire Team Operations – these courses were completed at the Respondent’s own expense.

Respondent’s submissions on ordinary and customary turnover of labour

1. The Respondent submitted that he was not offered a position in writing with the same position and pay conditions as his original position with the Applicant.

1. The Respondent argued that the employment with MSS was not suitable employment because the Respondent had to fund his own courses, fitness tests and medicals.

1. The Respondent stated that his employment with MSS was never guaranteed.

1. The Respondent submitted that he had worked with the Applicant for over five years at the work site where his contract ended approximately December 2011. The Respondent stated he was redeployed to Goonyella Riverside and has been there since the contract with the Applicant ended.

Consideration

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

1. 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.

1. 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

1. 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.

1. I Order accordingly.

COMMISSIONER

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

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