Er 24 Pty Ltd T/A Er 24 v Mrs Glenda De Winter

[2017] FWC 395

[2017] FWC 395

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
Mrs Glenda De Winter
(C2016/5765)

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. Mrs De Winter made individual submissions as below.

Applicant’s submission

[2] The Applicant provided the Respondent was employed in a full time position at Broadmeadow Mine on an hourly rate of $28.00.

[3] The Applicant submitted the Security Services Industry Award 2010 (the Award) applied to the Respondent.

[4] The Applicant provided the Respondent was employed for two years and four months.

Respondent’s submissions

[5] The Respondent sought that her name was removed from the ‘list’ of Respondents but it was clarified in correspondence sent by my Chambers to the Respondent that there was no ‘list’, but an application made by the Applicant, and that this was the Respondent’s opportunity to put forward her argument as to why the amount of redundancy pay should not be reduced. The Respondent submitted that she did not wish to provide material addressing those matters set out in the Directions. It is noted however, that the Respondent provided the following in an email to Chambers dated 30 September 2016:

“When I was made aware that ER24 had not been successful in retaining the BMA BRM Contract - they then assisted with my transfer of employment to MSS the current Contract holder of where I am positioned.

I thought there was no Redundancy Clause in my Employment Contract with ER24.”

[6] The Respondent further stated in an email on 10 October 2016:

“As earlier stated my understanding is that ER24 assisted in my transition to MSS.”

Respondent’s submissions on ordinary and customary turnover of labour

[7] The Respondent did not provide any submissions in relation to this issue.

Summary of Applicant’s material in reply

[8] The Applicant referred Respondent’s email correspondence dated Monday 10 October 2016 and agreed with the Respondent’s email submission.

[9] The Applicant summarised the alternative employment as follows:

ER24	MSS
Position	Full-time Security	Full-time Security
Location	Broadmeadow Mine	Broadmeadow Mine
Pay	$28/hr	On or around $28/hr

Conclusion

[10] 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.

[11] 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 her accrued statutory and award entitlements on termination of the Respondent’s employment.

[12] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Mrs De Winter’s current employment is substantially the same as her previous employment with ER24, as she is working similar hours at the same rate of pay, with similar duties. 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 Mrs De Winter.

[13] I Order accordingly.

COMMISSIONER

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

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