Er 24 Pty Ltd T/A Er 24 v Ms Michelle Miranda

[2017] FWC 401

[2017] FWC 401

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 Michelle Miranda
(C2016/5772)

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. Ms Miranda made individual submissions as below.

Applicant’s submissions

[2] The Applicant submitted the Respondent was employed by the Applicant in a full time paramedic position at Hay Point Mine and was paid an hourly rate of $46.93.

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

[4] The Applicant submitted the Respondent had served three (3) years and 1.5 months with the Applicant.

Respondent’s submissions

[5] The Respondent submitted that she is entitled to a redundancy pay of $13,797.42 pursuant to s.119(1)(a) of the Act.

[6] The Respondent submitted she was employed with Applicant for the duration of the BHP Billiton Mitsubishi Alliance contract. She stated she commenced her employment on 1 June 2013 and her employment was terminated on 30 June 2015.

[7] The Respondent provided the following comparisons between her original employment with the Applicant and the redeployment offer made by the Applicant on 13 June 2016:

• Site contact/paramedic in comparison to paramedic (rescue/security);



• $42.93 an hour or $102,000 in comparison to $100,000;



• Located at Hay Point Coal Terminal, Hay Point Old (25 km from Respondent’s residence) in comparison to Burton Coal Mine;



• 12 hours per shift on an even roster, 7 on and 7 off in comparison to hours that weren’t provided and a requirement to do on call and remain at the camp site; and



• Duties included supervising all paramedic staff and security guards along with being the paramedic for the site in comparison to rescue, security and paramedic duties.

[8] The Respondent submitted the redeployment option offered by the Applicant brought about the following changes for the Respondent:

• She would have had to live on camp and therefore be away from her family;



• She would have to drive over 130km to work and back from her residence;



• She would have had to incur personal expenses in obtaining her Security licence and Rescue Qualifications; and



• She would have had a reduction in remuneration.

[9] The Respondent submitted she declined the offer at the Burton Coal Mine from the Applicant and obtained her new employment with CPA through SEEK and it had the following conditions:

• Her job title is paramedic;



• Her rate of pay is $46 an hour;



• Her location is Hay Point;



• Her hours of employment are 12 hours per shift on an even roster 7 days on and 7 days off after which she drove home to Sarina; and



• Her duties were paramedic duties only.

[10] The Respondent submitted in relation to her new employment, she had to obtain a Security Licence, Rehabilitation and Return to Work Coordinator training and obtain immunisations. These extra requirements were obtained by her and she submitted that she believed if she did not complete these extra requirements she would not have been offered the employment. Further, she submitted her initial offer from CPA (current employment) was $14,000 per annum less than what she was received with the Applicant. Accordingly, the Respondent submitted she was required to submit a “plea” to increase her hourly base rate. The Respondent stated her plea was successful and she was offered a revised contract of $46 per hour.

Respondent’s submissions on ordinary and customary turnover of labour

[11] The Respondent did not provide any submissions specifically on the ordinary and customary turnover of labour.

Consideration

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

[13] 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.

[14] As I have summarised in Brown, the other employment was obtained (as per the case law) by the Applicant in terms of their offer of redeployment, and while the resultant position provided terms that were not exactly the same, I am nonetheless satisfied it was objectively acceptable.

Conclusion

[15] Accordingly, for the aforementioned reasons I am 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. The Respondent has an entitlement to 7 weeks redundancy pay for between 3 and 4 years service. I consider it appropriate to vary the redundancy pay to 4 weeks.

[16] An Order [PR586733] reflecting the terms of this decision will issue separately.

COMMISSIONER

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

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<Price code A, PR589537>