Er 24 Pty Ltd T/A Er 24 v Ms Jamie Lee Hudspith
[2017] FWC 394
•26 MAY 2017
| [2017] FWC 394 |
| 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 Jamie Lee Hudspith
(C2016/5762)
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. Ms Hudspith made individual submissions as below.
Applicant’s submissions
[2] The Applicant submitted Ms Hudspith was employed in a full time security position at Gregory Crinum Mine.
[3] The Applicant submitted Ms Hudspith was paid an hourly rate of $30.29.
[4] The Applicant submitted the Security Services Industry Award 2010 (the Award) applied to the Respondent’s employment.
[5] The Applicant submitted the Respondent had served three years and 1.5 months service.
Respondent’s submissions
[6] In relation to the entitlement under s.119, the Respondent submitted that as she was made redundant by the Applicant (as the job which she was doing was no longer required by the company) she was entitled to redundancy pay in accordance with the Act.
[7] The Respondent submitted that the Applicant did not find, or was involved in any way in finding, taking applications, interviewing, negotiating or taking any other steps in regards to her current position. The Respondent stated:
“My current position is Team Leader Security Officer with CPA Group at Gregory Crinum Mine Emerald Queensland. I have been employed on a fulltime basis 84 hours per fortnight @ $29AUD per hour. Duties include but not limited to Site Access Administration, Foot Patrols, Boundary & Site Patrols, attending daily pre-start meetings and any other duties requested.”
[8] The Respondent stated that the link advertising the above position through SEEK employment was forwarded to her by a BHP Billiton (BMA) representative via email on 21 May 2016. She submitted that she sent in her application for this position on 27 May 2016.
[9] The Respondent submitted that the Applicant had no input or role or provided any assistance whatsoever in obtaining her current position with CPA. The Respondent stated in her Affidavit as follows:
“1. I received notification from ER24 that on the 16th May that ER24 were unsuccessful with the BMA Tender and my position would be terminated as of the 30th June 2016. I was also informed via Info Brief on the 23rd May 2016 that an information session would be presented by one of ER24's Executive Managers in the near future, unfortunately this never occurred with the Emerald staff.
2. As stated above we were made aware of our soon to be vacated positions being advertised on SEEK by the owner of the contract BHP Billiton (BMA) on the 21st May 2016 who also advised us that he would be a Referee for all staff on this site.
4. I have information from CPA Group Management stating that the decision to employ me was based solely on the information gathered through my application and supplied Referees. ER24 did not contribute in any way with this decision.
5. The last correspondence I received from ER24 in regards to any employment whatsoever was done so long after I had applied and been accepted by the Notice of Termination of Employment with ER 24.”
[10] The Respondent submitted that her current job was openly advertised on SEEK and was open to any applicant and she submitted that nowhere in the advertisement, position details, or at any stage in the application process, was the Applicant mentioned or involved, directly or indirectly, and further, nor was she given any preferential treatment because she was a current or former employee of the Applicant.
[11] The Respondent submitted that the Applicant and CPA were separate entities and submitted that for any one of them to provide employment, a formal agreement must be in place in terms of a two party agreement or via the transfer of employment provisions under the Act.
[12] 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.
[13] The Respondent stated she was entitled to $8905.26.00 of redundancy payment on the following basis: “7(weeks) * 42 Hours* 30.29 = 8905.26”.
[14] Under the heading of Conclusions, the Respondent stated as follows:
“ER24 may have communicated with my present company in regards to a smooth transition, as I see it, this was from a contractual transition and in no way do I see any evidence or communications displaying how ER24 obtained me my new position.
ER24 has never made me an alternative employment offer.
ER24 was never involved in any way in the process of securing my current employment.
ER24 did not forward the SEEK information to us until the 30th May 2016 as is noted in Tommy Wicht's documents No 42, by this time not only had I been in regular communications with CPA Group, they had requested and received all my tickets & licences.
ER24 who is claiming to have secured employment offers, is asking the commission to grant an order (Order refused by the Commission) for us to produce documents relevant to our current employment. If my current employment would have been offered by ER24 all this information would be already in their possession. The reason it is not, is because they never made such an employment offer.
ER24's sole proof presented in front of the Commission is a compilation of part facts, part allegations presented in a table which is breaching privacy and confidentiality conditions of our employment.
ER24 is trying to avoid its legal obligations by stating that Security Officers are working as Security Officers and Paramedics are working as Paramedics on more or less industry standards and market conditions for these jobs. No proof whatsoever is provided that ER24 fulfilled or attempted to fulfil the obligations stipulated in S. 120, (1) (b) (i) - "obtain other acceptable employment for the employee".
I respectfully ask the commission to consider the above arguments in assessing the Application to vary redundancy pay, to reject the Application and to find ER24 Pty Ltd responsible to pay 8905.26 AUD as my legal entitlements in accordance with the Fair Work Act - S. 119.”
[15] It is noted that the Respondent’s material addresses the matter of whether the other employment was ‘obtained’ by the Applicant but does not address whether it was ‘acceptable’.
Respondent’s submissions on ordinary and customary turnover of labour
[16] The Respondent submitted that given the BMA contract was a “3+1+1”, there was a reasonable expectation of continued employment and there was no intermittency of employment, nor was it seasonal or casual in nature.
[17] The Respondent referenced the following extract from the Decision of Justice Fisher of the NSW Industrial Commission in a case concerning the NSW Employment Protection Act 2, which was referred to by a Full Bench of the Commission in considering the origins and meaning of the exception to pay redundancy due to “ordinary and customary turnover of labour” in Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters' Union of Australia3. Justice Fisher stated as follows:
“[21] I am satisfied that the Full Bench adopted the expression “ordinary and customary turnover of labour” to encapsulate situations where an “employee is dismissed for reasons relating to his/her performance, or where termination is due to a normal feature of a business.” A normal feature of a business is a reference to businesses where there is intermittency in employment because of the nature of the business. These are businesses where employment, or part of it, is seasonal, casual, or linked to the duration of a particular contract or task. These are situations where the employee has no reasonable or settled expectation of continuous or continuing employment. This will often be reflected in the casual, seasonal, or fixed term or fixed task nature of the employment arrangement.”
Conclusion
[18] 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.
[19] 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.
[20] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Ms Hudspith’s current employment is substantially the same as her previous employment with ER24, as she is working full time hours at a similar 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 Ms Hudspith.
[21] I Order accordingly.
COMMISSIONER
1 A copy of the decision [2017] FWC 383 was provided to the Respondent by email.
2 (1983) 7 IR 273
3 [2015] FWCFB 8040
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