ER 24 Pty Ltd T/A ER 24 v Ms Catherine Reid
[2017] FWC 396
•26 May 2017
| [2017] FWC 396 |
| 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
Ms Catherine Reid
(C2016/5768)
| Commissioner Spencer | BRISBANE, 26 May 2017 |
Variation of redundancy pay.
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. Ms Reid made individual submissions as below.
Applicant’s submissions
The Applicant submitted the Respondent was employed in a full time position at the Broadmeadow Mine on an hourly rate of $30.29.
The Applicant submitted the Security Services Industry Award 2010 (the Award) applied to the Respondent.
The Applicant provided the Respondent had been employed for three years and one month.
Respondent’s submissions
In relation to the entitlement under s.119, the Respondent submitted that she was made redundant by the Applicant as the job which she was doing was no longer required by the company and that she is entitled to redundancy pay in accordance with the Act.
The Respondent submitted that ER24 did not find, or was involved in any way in regards to finding the Respondent a position with the new Company. The Respondent stated:
“My current position is Emergency Security Officer with MSS Strategic Medical at Broadmeadow Mine Site. With ER24 I was Senior Security Officer.
The number of hours worked is similar to the previous position worked with ER24.”
The Respondent submitted that her current rate of pay is $28.62 per hour, which is less than she was receiving with the Applicant ($30.29). The Respondent submitted this amounted to a loss of $3,647.28 per year.
The Respondent submitted that previously with the Applicant, any overtime was paid out at time and a half, whereas with MSS, it is now paid at time and a quarter. The Respondent confirmed that on termination, the Applicant paid out all of her accrued annual leave.
The Respondent submitted that she sent in her application through SEEK for a position with MSS Strategic Medical on 10 June 2016. She submitted that ER24 had not been directly or indirectly involved in obtaining her current position with MSS, and nor was she given any preferential treatment because she was a current or former employee of the Applicant.
The Respondent submitted that she was required to complete a physical fitness test, immunisations at her own expense as a requirement of the new position.
The Respondent submitted that she was not approached with the intent to offer a position by anyone from any of the new companies between the time that the notification of loss of contract was sent out and the date of which the Respondent applied through Seek.
The Respondent raised a concern in relation to the provision of a Spreadsheet by the Applicant, which detailed each of the 29 Respondents and their income or alleged income. The Respondent noted her concern in relation to confidentiality and privacy obligations of the Applicant.
The Respondent stated she was entitled to $8905.26 as well as 15 weeks of interest that would have been accrued.
Respondent’s submissions on ordinary and customary turnover of labour
The Respondent disagreed that the termination of her employment fell under ordinary and customary turnover of labour. The Respondent submitted as follows:
“I started my employment with ER24 May 2013 on a 3 yr contract at Peak Downs Mine. After approximately 19 months they lost a majority of the contract due to restructuring. I was transferred to Broadmeadow Mine as there would be ongoing work in the same higher duties position of Senior Officer.
So I remained employed within the ER24.
When the contract for tender was up at Broadmeadow Mine, ER24 were very positive they would resecure the contract and there would also be an upcoming contract at ADANI Mine in QLD, which created an expectation of continued employment with the Company.
With the abolition of my position, I am now a Security Guard, it leads me to believe that my former position is now redundant, and not due to ordinary and customary turnover of labour, but more so the fact that the new Company did not see the requirement on a small Mine Site for a Senior Officer, as there is on the larger Sites.”
The Respondent submitted that a reasonable expectation of continuing employment had been established and that there was no intermittency in employment because of the nature of the business.
The Respondent submitted that the reason for the loss of business was not due to staff poor performance or lack of performance but rather the failure of the company to re-secure the contract through the tender process.
The Respondent submitted that, at the end of contract, staff are generally redeployed as opposed to being terminated, and therefore, the Respondent considered that the terminations are not a normal feature of the business and therefore not due to the ordinary and customary turnover of labour.
The Respondent submitted as follows:
“I believe that the failure to resecure the contract was the occasion for our termination not the reason for the dismissal and thus not due to the ordinary and customary turnover of labour.”
It was submitted by the Respondent that, as ER24 employees, employees had fair reason to believe that if they performed well it was likely that the BMA mining contract would be renewed and therefore many employees had an expectation of on-going employment.
Conclusion
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.
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.
In examining the Respondent’s current entitlements and those at ER24, Ms Reid submitted she currently earns $1.67 less an hour, and is working at the Broadmeadow Mine Site on similar hours. Ms Reid also submitted her current position is an Emergency Security Officer, whereas her role was a Senior Security Officer while employed by the Applicant.
The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Ms Reid’s current employment is substantially the same as her previous employment with ER24, as she is working similar hours, with similar duties. While Ms Reid submits that the employment is not acceptable, 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 Ms Reid.
I Order accordingly.
COMMISSIONER
[1] A copy of the decision (PR589518) was provided to the Respondent by email.
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