Er 24 Pty Ltd T/A Er 24 v Ms Sharon Bohan
[2017] FWC 384
•26 MAY 2017
| [2017] FWC 384 |
| 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 Sharon Bohan
(C2016/5750)
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 Bohan made individual submissions as below.
Applicant’s submissions
[2] The Respondent, Ms Bohan, was employed by the Applicant in a full-time security position at Gregory Crinum Mine paid an hourly rate of $28.00 per hour.
[3] The Security Services Industry Award 2010 (the Award) applied to the Respondent’s employment.
[4] The Respondent had served two (2) years and nine (9) months’ service with the Applicant.
[5] Due to the Respondent’s length of service being more than two (2) years but less than three (3) years the Respondent is entitled to six (6) weeks redundancy payment. Based on the Respondent’s base rate of pay and their ordinary hours worked the redundancy payment would equate to $7,056.00.
[6] Further, the Applicant submitted that, in addition to the list of steps above, they took the following steps in obtaining other employment:
“b. Email correspondence from the Applicant to the Respondent as per the attachment marked TW62 in Mr Wicht’s Affidavit which provides that the positions for CPA or MSS must be applied for directly through the Seek advertisements and that there are no missing requirements for the Respondent’s transfer to CPA or MSS; and
c. The Applicant received confirmation from CPA that the Respondent had obtained acceptable alternative employment with CPA as per attachment marked TW102 in Mr Wicht’s Affidavit.”
[7] The Applicant provided details of the other employment as follows:
“a. Full-time security position;
b. Located at Gregory Crinum Mine;
c. The Applicant has made every reasonable enquiry as commercially permissible and made a great effort in verifying the rate of pay, that the Respondent is on or around $28.00 per hour base rate of pay with CPA;
d. The Respondent works 84 hours per fortnight as required by the BMA contract; and
e. The duties the Applicant believes the Respondent undertakes with CPA based on the scope of service for the unsuccessful BMA tender is as follows:
i. Execute site access duties through the effective use of the company’s training and access management systems (TAMS);
ii. Maintain high level customer service throughout interactions with site personnel and visitors;
iii. Complete and communicate all scheduled and requested TAMS reports to the sites;
iv. In cases of security threats act within the accountabilities of the respective sites security processes;
v. Fulfil front of house accountabilities during site closures and emergency activations;
vi. Execute patrols of the sites boundary and internal facilities; and
vii. Monitor sites CCTV network.”
Summary of Respondent’s Submissions
[8] The Respondent submitted as follows:
“I was made redundant by ER24 Pty Ltd as the job which I was doing was no longer required by the company, therefore I argue that I am entitled to redundancy pay in accordance with Fair Work Act, S. 119, l(a):
I would like to inform the Commission that ER24 did not find, or was involved in any way in finding, taking applications, interviewing, negotiating or taking any other steps in regards to my current position, as will be detailed herein.
My current position is Asset Protection Officer with CPA Group at Gregory Crinum Mine Emerald Queensland. I have been employed on a fulltime basis 84hours per fortnight@ $28AUD per hour. Duties include Site Access Administration, Foot Patrols, Boundary & Site Patrols, attending daily pre-start meetings and any other duties requested.
The link advertising the above position through SEEK employment was forwarded to me by a BHP Billiton (BMA) representative via email on the 2151 of May 2016 (DOC 1 Attach). I sent my application in for this position on the 22nd of May 2016 as shown below.
As stated above ER24 had no input/role or provided any assistance whatsoever in obtaining my current position with CPA Group as I will detail below.
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 ofthe contract BHP Billiton (BMA) who also advised us that he would be a Referee for all staff on this site.
3. I have spoken with CPA Group Management who informed me 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.
4. 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 ER24.
1. All these jobs, and among them my current job, were openly advertised on SEEK. They were open to any applicant and nowhere in the Advertisement, position details, or at any stage in the application process, was ER24 mentioned or involved, directly or indirectly, or was I given any preferential treatment because I was an ER24 current or former employee.
2. To the best of my knowledge ER24 Pty and CPA Group are entirely separate business entities. I would argue that for any one of them to provide employment, a formal agreement must be in place in one of the following forms:
a. A two party agreement between ER24 Pty- CPA Group. I am not aware of any such agreement and if it exists, and I unknowingly benefited from it, I respectfully ask the Commission to ask ER24 to submit this agreement for examination. Such an agreement would raise the problem of the public advertisement mentioned at 1 above.
b. If such an agreement exits then the appropriate way to fulfil it would have been via the FAIR WORK ACT-SECTION 122 Transfer of employment situations that affect the obligation to pay redundancy pay. No such option was ever offered, discussed or mentioned to me by ER24 or CPA Group formally.
3. In the ER24 Application to vary redundancy pay/Part 2 Requirements for an order/2.1 is indicated the "attached Spreadsheet at number two (2)" as "details of the alternative offer provided". These spreadsheet is not in any way a proof that ER24 ever provided me with an acceptable alternative offer of employment, it is merely stating that I am currently employed.
The spreadsheet attached by ER24 contains a number of 29 names and their income or alleged income, Security Officers and Paramedics, across three companies. I consider that this is a breach of confidentiality and privacy with consequences which I can not entirely assess at this stage. However, I am of the opinion that it has the potential to impair my ability to successfully negotiate future salaries, raises, bonuses or higher duties entitlements in the future.”
[9] The Respondent submitted that her length of service with the Applicant was two years and nine months, and that she was entitled to $7051.00 of redundancy payment as follows:
“6(weeks) * 42 Hours * 28.00 AUD = 7051.00 AUD”
[10] 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 30'h May 2016 as is noted in Tommy Wicht's documents No42, 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".”
Summary of Respondent’s submissions on ordinary and customary turnover of labour
[11] In response to the opportunity to provide further submissions on ordinary and customary turnover of labour, the Respondent submitted as follows:
“Having already submitted a response to the question of whether ER24 Pty Ltd assisted in my gaining employment with CPA Group, I now submit that with reference to (2015) FWCFB 8040 Compass V National Union of Workers (and others) The Decision Under Appeal, Para 8 (Sub 33) that given the 1BMA 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.
Also with reference to ‘The Origins and Meaning of the Exception’ Para 19 (Sub 21)
[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.”
Summary of Applicant’s material in reply
[12] The Applicant refuted the Respondent’s allegation that they were not involved in negotiating or taking any other steps in regards to the Respondent’s position with CPA.
[13] The Applicant referred to the Affidavit of Mr Hendrik Mare, Project Manager of the Applicant, as evidence that the Applicant directed time and resources to assisting the Respondents in securing acceptable alternative employment with CPA. Mr Mare stated as follows:
“7. On or around 23 May 2016 I attended a meeting with Mr Matt Willis, Director, Mr Chris Wicht, Director, Mr Jason Scott, General Manager, Mr Tommy Wicht, Human Resources/Accounts, Mr John Hickson, Operations and Training Coordinator, Mr Hans Wicht, Head of Resource and Logistics (Head Office Meeting).
8. The purpose of the Head Office Meeting was to discuss and implement the demobilisation plan to ensure a smooth transition for ER24 employees to obtain acceptable alternative employment with the new providers.
9. During the Head Office Meeting Mr Willis directed me and Mr Hickson to visit each mine site and conduct face-to-face information sessions with every employee affected by the unsuccessful tender.
10. ln the Head Office Meeting, Mr Willis directed me that my main priority from that day until the end of the BMA contract on 1 July 2016 was to keep our employees up to date with any developments in obtaining alternative employment with the new providers and to answer any questions the employees may have.”
[14] Further, the Applicant submitted that it emailed to the Respondent a copy of the information sessions held by the Applicant and further reiterated there were no missing requirements for the transfer of their employment to CPA.
[15] The Applicant refutes the argument that they were not involved in the Respondent’s new position with CPA, as there was regular correspondence with CPA, Ms Millwood and Mr Lawton regarding the Respondents and the application process in securing acceptable alternative employment with CPA.
[16] The Applicant admitted that CPA and the Applicant are not related business entities and submitted that no material submitted by the Applicant suggests that this may be the case.
[17] The Applicant submitted that the Respondent has discounted the great lengths the Applicant went to ensure that the Respondent was provided with acceptable alternative employment with CPA within the commercial realities (unbeknownst to the Applicant) their efforts were being severely undermined simultaneously by the actions of BMA. In this respect, the Applicant submitted as follows:
“In the Respondent’s submissions, they have provided email correspondence from BMA that was sent directly to the Respondent on 21 May 2016 without the prior consent of the Applicant (while the Respondent was in employment with the Applicant). The BMA correspondence contained a link to apply to CPA via their seek advertisements.
Given that BMA advised the Applicant of the unsuccessful tender on or around Monday 16 May 2016 and did not seek the Applicant’s consent prior to sending same, the Applicant considers this action of BMA undermining their efforts to secure acceptable alternative employment with CPA.
As per Mr Willis’ Affidavit, the Applicant advised BMA that they wish to work with the incoming providers in order to assist the Respondents in obtaining acceptable alternative employment. At no time did BMA advise the Applicant that they were intending on providing links to jobs with the incoming providers directly to the Respondent.”
[18] The Applicant submitted that the Respondent has transferred employment at the same location, on relatively the same pay as with the Applicant, has had her entitlements paid out by the Applicant and was arguing that redundancy payment is due and owing to what was essentially a ‘shirt swap’.
[19] The Applicant noted that, on the Respondent’s materials, Mr Rodney Norris from BMA had sent directly to the Respondent (without the Applicant’s consent) information pertaining to the job opportunities at CPA and submitted that this action undermined the considerable efforts made by the Applicant in diverting their head office management team exclusively concentrating their time and attention to securing the Respondent(s) employment with the incoming providers.
[20] The Applicant provided a copy of the Respondent’s latest employment contract, and relied on the following clauses:
“14. Termination
14.1. This Agreement may terminate or be terminated in the following circumstances:
(a) By the Employer without notice if the Employee engages in:
(x) The Employer's contract with the operator of the Nominated Mine Site is varied or comes to an end;
...
(b) This Agreement will terminate automatically if either of the following occur:
(i) The Employer's contract with the operator of the Nominated Mine Site is terminated or comes to an end.”
[21] The Applicant submitted that the Respondent was aware that their employment was dependent on the Applicant’s on-going contract with the mine site operator.
Conclusion
[22] 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.
[23] 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.
[24] On the evidence of the Applicant, Ms Bohan is currently employed under similar entitlements as she was under the Applicant.
[25] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Ms Bohan’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. 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 Bohan.
[26] I Order accordingly.
COMMISSIONER
1 A copy of the decision (PR589518) was provided to the Respondent by email.
Printed by authority of the Commonwealth Government Printer
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