ER 24 Pty Ltd T/A ER 24 v Ms Lynda Millwood
[2017] FWC 398
•26 May 2017
| [2017] FWC 398 |
| 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 Lynda Millwood
(C2016/5770)
| 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 Millwood made individual submissions as below.
Applicant’s submissions on Ms Millwood
The Applicant submitted the Respondent was employed by the Applicant in a full time security position at Broadmeadow Mine paid an hourly rate of $28.00 per hour.
The Applicant submitted the Security Services Industry Award 2010 (the Award) applied to the Respondent’s employment.
The Applicant stated the Respondent had served three (3) years and 1.5 months’ service with the Applicant.
Respondent’s submissions
The Respondent submitted she was made redundant by the Applicant as the job she was doing was no longer required by the company. Accordingly, she argued that she is entitled to a redundancy pay pursuant to s.119(1)(a).
The Respondent submitted her current employment is with CPA as a casual/relief security Emergency Officer which started on 13 September 2016.
The Respondent stated she never accepted a full time position with CPA at Hay Point according to the spread sheet of Employment comparisons which was attached to the Applicant’s application.
The Respondent submitted she was employed by MSS after applying on SEEK for the position and following a phone interview with MSS.
The Respondent submitted she was overseas at the time of MSS taking over the contract; therefore, her start date was 7 August 2016. She stated her position, when she returned, was fewer hours on a roster that did not suit her. Following this, she applied to CPA on 29 July 2016.
The Respondent submitted the Applicant is incorrect in submitting to the Commission that she accepted an alleged offer from CPA in which the Applicant had some involvement.
Respondent’s submissions on ordinary and customary turnover of labour
The Respondent submitted she disagreed that the termination of employment falls under the ‘ordinary and customary turnover of labour.’
The Respondent stated she started her employment with the Applicant in May 2013. She further stated it was a 3 year contract at Peak Downs Mine. The Applicant allegedly lost the contract after 19 months. Following this, the Respondent was redeployed to Broadmeadows Mine as she submitted she had been a loyal employee and there would be on-going work at this mine site.
When the contract at the Broadmeadows Mine was up for tender, the Applicant was very positive that it would secure the contract back which the Respondent submitted created a perception there would be on-going continuous work. Further, the Respondent submitted that upcoming contracts, such as the Adani Mine in Queensland, created an expectation of continued employment.
The Respondent submitted that reasonable expectation of continuing employment had in fact been established.
The Respondent argued the reason for the loss of business was not due to the poor performance of the staff or lack thereof but rather the failure of the company to secure the contract through the tender process.
The Respondent submitted that staff of the Applicant are usually redeployed as opposed to terminated. Accordingly, the Respondent submitted the terminations are not a normal feature of the business and therefore not due to the ordinary and customary turnover of labour.
As the Applicant’s employees, the Respondent submitted that collectively the employees had reason to believe that if they performed well, it was likely that the BMA mining contract would be renewed. For this reason, the Respondent submitted that 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.
Ms Millwood submitted that she is employed as a casual Security Emergency Officer, whereas her previous employment with ER24 was on a fulltime basis. Ms Millwood had initially obtained employment with MSS but, on her evidence, applied to her current position due to rostering requirements.
The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Ms Millwood’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. While Ms Millwood 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 Millwood.
I Order accordingly.
COMMISSIONER
[1] A copy of the decision [2017] FWC 383 was provided to the Respondent by email.
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