ER 24 Pty Ltd T/A ER 24 v Ms Susan Mary Berthun

Case •

[2017] FWC 383

•

26 MAY 2017

No judgment structure available for this case.

[2017] FWC 383

The attached document replaces the document previously issued with the above code on 26 May 2017.

Correct citation inserted at paragraph [1].

Calum Woods

Relief Associate to Commissioner Spencer

Dated 26 May 2017

[2017] FWC 383
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 Susan Mary Berthun
(C2016/5749)

COMMISSIONER SPENCER

BRISBANE, 26 MAY 2017

Variation of redundancy pay, 29 applications originally made pursuant to s.120(1)(b)(i), pursued later in accordance with s.119(1)(a).

Introduction

[1] This Decision relates to an application made under s.120 of the Fair Work Act 2009 (Cth) (the Act) for a variation to redundancy pay. The application has been made by ER 24 Pty Ltd T/A ER 24 (the Applicant/the Employer). The Applicant filed 29 applications, relating to 29 Respondents, being 15 former employees that undertook security duties, and 14 former employees that undertook paramedic duties. This Decision relates to one of the applications, in respect of Ms Susan Mary Berthun, a former security employee. There is some commonality between the Decisions based on the material. However, the 15 security employees are covered by a separate Award, with different applicable provisions in relation to redundancy, in contrast to the 14 paramedic employees. This decision provides the substantive reasoning for the individual decisions of the 15 former security employees, as referred to in each of those decisions issued separately.

[2] As per the applications, the Applicant has made these applications pursuant to s.120(1)(b)(i) of the Act, on the basis that the Respondents have an entitlement to redundancy pay but that the Employer, had obtained other acceptable employment for the Respondents, (the employees).

Orders to Produce – Refused

[3] Directions were set for the Applicant to file their material in relation to s.120(1)(b)(i) of the Act. The Applicant then made applications for Orders Requiring Production of Documents for the Respondents to produce information regarding their new employment. The Applicant sought the following documents from the Respondents:

  • The two (2) latest pay slips of the Respondent;


  • The letter of offer issued to the Respondent from their new employer;


  • The Employment Contract between the Respondent and their new employer; and


  • The list of the duties undertaken by the Respondent in their new position.


[4] I refused to grant the Orders, noting that the onus is on the Applicant to make out their case in the first instance; that is that the Applicant has obtained other acceptable employment for the Respondent parties, and the specific circumstances of that other acceptable employment. In seeking these Orders, the Applicant was effectively asking the Respondents to discharge the Applicant’s onus, to make out their case.

Section 120(1)(b)(i)/Section 119(1)(a)

[5] Subsequently, when the Applicant’s submissions were filed, contrary to the applications that were filed, the Applicant stated that they have filed the applications on the basis that there was no entitlement to redundancy pay under s.119(1)(a) of the Act, due to the terminations being a result of the ‘ordinary and customary turnover of labour’.

[6] Section 120 of the Act only applies if an employee is entitled to be paid an amount of redundancy pay by the employer because of s.119 of the Act. However, section 119 of the Act provides for an exception to an entitlement to redundancy pay (the Exception) if the termination was due to the ordinary and customary turnover of labour. The Applicant, in their submissions (and contrary to their applications), argued that all of Respondents are not entitled to redundancy pay due to the fact that their terminations of employment, were due to the ordinary and customary turnover of labour.

[7] In effect, by arguing that the terminations were due to the ordinary and customary turnover of labour, the Applicant in their submissions, was asking the Commission to find that the pre-requisites for an application under s.120 (the applications which had been made) have not been met and as argued on behalf of some Respondent’s, the applications made pursuant to s.120(1)(b)(i) were ultra vires based on the application.

[8] In the alternative, the Applicant requested that, if the Commission does not find that the terminations were due to ordinary and customary turnover of labour (and consequently that there is an entitlement to redundancy pay under s.119), the Commission reduce the amount of redundancy pay.

[9] Therefore, the Applicant was conducting its applications made under s.120, such that it is seeking a determination from the Commission as to whether there is an entitlement to redundancy pay under s.119, or, whether the terminations were due to the ordinary and customary turnover of labour. This was not canvassed in the original applications, nor was permission sought from the Commission to amend their original applications; the Applicant simply provided submissions seeking an alternative determination, than that sought in their application.

[10] Given the volume of Applications and the Applicant’s change of course, these matters have required multiple sets of Directions, involving 29 Respondents, with some complexity to manage, given the Applicant’s altered arguments and the number of applications. In circumstances where there were a large number of unrepresented Respondents (only 5 of the 29 Respondents had representation), the Applicant was permitted to conduct their (altered) argument, and submissions were also sought from the Respondents, in respect of ordinary and customary turnover of labour. The alternative course would have potentially meant the administration of serving another 29 applications and further delay and responses for the Respondents.

[11] The Applicant has, in their final submissions in reply in respect of the issue of ordinary and customary turnover of labour, somewhat incongruously, indicated that if the Commission finds that the terminations were due to the ordinary and customary turnover of labour, the Applicant will withdraw the applications and commence applications under s.739 of the Act.

[12] It is noted that if the Applicant had believed that there was no entitlement to redundancy pay under s.119 (as they are now arguing), a more appropriate course for a determination as to that entitlement would have been under a dispute application under s.739 of the Act, prior to the Respondents’ employment finishing, where the Commission may determine an entitlement under an Award or the NES. To be clear on what is a further possible proposed course by the Applicant (s.739), given the absence of any previously raised dispute in relation to the “Exception” in s.119(1)(a), and that the employment relationships between the Applicant and the Respondents have now ended; the opportunity to commence a dispute under the appropriate disputes procedure, resulting in a s.739 application, has been lost.

Directions – Ordinary and Customary Turnover of Labour

[13] As stated above, multiple Directions were issued, including specifically in relation to the subsequent issue of the ordinary and customary turnover of labour (as per the prior reasoning).

[14] The Directions were set for the Applicant to file their submissions in relation to the application under s.120(1)(b)(i), and the Respondents to file their responses, and the Applicant to file material in reply.

[15] After the Applicant raised this new argument of ordinary and customary turnover of labour in their submissions, an opportunity was provided, by way of a further Direction, for the Respondents (given they predominantly were unrepresented) to file their responses to this argument. A recent Full Bench authority on the issue; Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters' Union of Australia (Compass) 1 and a previous Decision of the Commission (as currently constituted), which was relied on by the Applicant in their submissions; Kilsby v MSS Security Pty Ltd T/A MSS Security (Kilsby)2 were brought to the parties attention, and links to access these Decisions were provided.

[16] The Applicant was given an opportunity to file submissions in response, but, despite being provided with the link to the Compass Decision, did not specifically address the Full Bench authority in Compass, their submissions relied on the Kilsby Decision, which was released prior to the Full Bench Decision.

[17] Further, in their submissions in reply, the Applicant invited the Commission to further Direct them to file evidence in relation to dismissing employees at the end of their contracts, which was a relevant consideration in the Compass Full Bench Decision.

[18] In order that the Applicant could present their case (as per their invitation for yet further Directions), it was confirmed that, in lieu of setting any further Directions, these matters were listed for hearing by telephone (given the numbers of parties and their geographical locations). Once this course with the hearing was notified, the Applicant then indicated that they did not wish to make any further submissions. It was confirmed that to bring this matter to finality, the hearing would proceed. The hearing was recorded and a copy of the transcript provided to all parties. Those Respondent’s unable to attend the hearing were provided with an opportunity to respond to any matters raised at the hearing, via the transcript.

Background

[19] The Applicant has applied to the Fair Work Commission (the Commission) seeking to have the redundancy entitlement of Ms Susan Mary Berthun (the Respondent) reduced to nil. In the Form 54A - Application to vary redundancy pay filed by the Applicant, the Applicant stated that the Respondent had been employed on a full-time basis with the Applicant for 3 years and one month, and is entitled to 7 weeks redundancy pay. The application states that the entitlement to 7 weeks redundancy gives an amount of $8,232.00 (less any applicable tax). which is sought to be varied to nil.

[20] The Applicant provides security, emergency response, nursing and paramedic employees to various mine sites and tender for their contract work.

[21] The Applicant had a number of their employees employed at seven (7) Billiton Mitsubishi Alliance (BMA) mine sites. The contracts for the BMA mine sites was for a period of approximately three (3) years.

[22] On or around 16 May 2016 BMA advised the Applicant that they were unsuccessful in securing the ongoing tender for their BMA mine sites’ contracts and that the Applicant’s services on the BMA mine sites would end on 30 June 2016.

[23] The Director of the Applicant sent an email, dated 16 May 2016,to all affected employees notifying them that the Applicant would hold the BMA contracts and be ‘on site’ until 1 July 2016.

[24] The new providers of services at the BMA sites were CPAG Health and Medical and Security (CPA) and MSS Strategic Medical and Rescue (MSS).

Relevant Award and legislative clauses

[25] The Respondent’s employment was covered by the Security Services Industry Award 2010 3 (the Award). The Applicant provided the Respondents were employed under individual contracts of employment. The individual contracts also referenced that the employment of the Security employee’s was classified according to the Schedule in the Award. Clause 12 of the Award deals with redundancy. Clause 12.1 states as follows:

    “Redundancy pay is provided for in the NES”.

[26] However, Clause 12.5 of the Award goes on to provide for circumstances involving ‘Change of Contract’, and states as follows:

12.5 Change of contract

    [12.5 varied by PR994514 from 01Jan10]

    (a) This clause applies in addition to clause 8—Consultation of this award and s.120(1)(b)(i) of the Act, and applies on the change to the contractor who provides security services to a particular client from one security contractor (the outgoing contractor) to another (the incoming contractor).

    (b) Section 119 of the Act does not apply to an employee of the outgoing contractor where:

      (i) the employee of the outgoing contractor agrees to other acceptable employment with the incoming contractor; and

      (ii) the outgoing contractor has paid to the employee all of the employee’s accrued statutory and award entitlements on termination of the employee’s employment.

    (c) To avoid doubt, s.119 of the Act does apply to an employee of an outgoing contractor where the employee is not offered acceptable employment with either the outgoing contractor or the incoming contractor.

[27] Section 121(2) of the Act provides:

121 Exclusions from obligation to pay redundancy pay

    …

    (2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

[28] The National Employment Standards (NES) prescribe the minimum entitlements to redundancy pay pursuant to s.119 of the Act:

119 Redundancy pay

    Entitlement to redundancy pay

    (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

      (a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

      (b) because of the insolvency or bankruptcy of the employer.

    Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

    Amount of redundancy pay

    (2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

    Redundancy pay period

    Employee’s period of continuous service with the employer on termination

    Redundancy pay period

    1

    At least 1 year but less than 2 years

    4 weeks

    2

    At least 2 years but less than 3 years

    6 weeks

    3

    At least 3 years but less than 4 years

    7 weeks

    4

    At least 4 years but less than 5 years

    8 weeks

    5

    At least 5 years but less than 6 years

    10 weeks

    6

    At least 6 years but less than 7 years

    11 weeks

    7

    At least 7 years but less than 8 years

    13 weeks

    8

    At least 8 years but less than 9 years

    14 weeks

    9

    At least 9 years but less than 10 years

    16 weeks

    10

    At least 10 years

    12 weeks

[29] The application has been made pursuant to s.120(1)(b)(i) of the Act which provides:

120 Variation of redundancy pay for other employment or incapacity to pay

    (1) This section applies if:

      (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

      (b) the employer:

        (i) obtains other acceptable employment for the employee…

    (2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

    (3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

    (underline added)

[30] Directions were set as follows:

    “[7] In the … circumstances where the application is made under s.120(1)(b)(i), the Employer will be required to establish that, pursuant to s.120(1)(a) of the Act, the Employee was entitled to be paid redundancy pay in accordance with s.119 of the Act; and that the Employer has obtained other acceptable employment for the Employee.”

[31] The Directions asked the parties to address whether there was an entitlement to redundancy under s.119, and provide information in relation to the remuneration and conditions of the alternative employment found, including (in comparison to the former position); its status, rate of pay, location, hours of employment, duties. The Directions also requested submissions on whether the alternative employment was obtained by the Employer; whether the alternative employment was or was not, acceptable, and why; the length of the Respondent’s service with the Applicant; and how much redundancy payment the Respondent is entitled to.

[32] As set out, following the Directions, the Applicant’s solicitor sought an Order Requiring Production of Documents in respect of each of the 29 applications. These Orders were refused in correspondence as follows:

    “The Commissioner is in receipt of the below email from the Application in matter - C2016/5791 - ER24 Pty Ltd and others.

    The Applicant has made an application to the Commission seeking to vary the redundancy pay of the Respondent parties, pursuant to s.120(1)(b)(i) of the Fair Work Act 2009, on the basis that the Applicant has obtained other acceptable employments for the Respondent parties.

    The Commission set Directions in this matter on 27 September 2016 (attached), directing that the Applicant provide its submissions by 4 October 2016 and the Respondent parties to provide their submissions by 11 October 2016.

    The Commissioner does not intend to grant the attached Order for production of documents as sought by the Applicant. The Applicant sought the following documents for from the Respondent’s in relation to their Application:

  • The two (2) latest pay slips of the Respondent with MSS Strategic Medical and Rescue (MSS);


  • The letter of offer issued to the Respondent by MSS;


  • The Employment Contract between the Respondent and MSS; and


  • The list of the duties undertaken by the Respondent at MSS


    The Commissioner notes that the onus is on the Applicant to make out their case in the first instance; that is that the Applicant has obtained other acceptable employment for the Respondent parties, and the specific circumstances of that other acceptable employment.

    The Commissioner does however, put the Respondent parties on notice that it will be relevant for them to discuss the abovementioned material in their response to the Applicant’s application so that a comparison can be made between the two employment engagements.

    The Respondent parties should note they do not have to meet the order for production of documents they are only to ensure that they meet the dates for filing of the material as set out in the attached directions”.

[33] Subsequent to the refusal of the Orders for Production, the Applicant filed submissions then alleging that rather than the employer having obtained other acceptable employment, they now argued that there was no entitlement to redundancy under s.119 because the termination was due to the ordinary and customary turnover of labour (the Exclusion). While the initial Directions provided for submissions on whether there was an entitlement under s.119 to redundancy pay, the Directions did not specifically call for submissions on the issue of ordinary and customary turnover of labour. The applications had not been made out on this basis. The Applicant in their submissions now relied on the Exclusion in s.119.

[34] Given the content of the applications and the original Directions, most of the Respondents (of the 29 applications) did not address this issue in their material, Further Directions were therefore set specifically in relation to this issue (for the reasons of efficiency and fairness as set out earlier). An example of a Full Bench Decision 4 dealing with the issue was provided to the parties as an indication of what would be considered in deciding whether a termination was due to the ‘ordinary and customary turnover of labour’ along with the Decision5 that the Applicant had relied on in their submissions.

Summary of Applicant’s Submissions

[35] The Applicant submitted that the Respondent was employed by the Applicant in a full-time security position at Gregory Crinum Mine, and paid an hourly rate of $28.00 per hour. The Applicant submitted that the Respondent’s length of service with the Applicant was 3 years and 1 month. The Applicant submitted that if the respondent was entitled to redundancy pay under s.119, they would be entitlement to an amount of $8,232.00, representing 7 weeks payment for between three and four years’ service.

[36] The Applicant submitted that there was no entitlement to redundancy pay under s.119, and in the alternative, if there was found to be an entitlement to redundancy pay, the Applicant submitted that the Commission should reduce the amount of redundancy pay to nil on the basis that the Applicant had obtained other acceptable employment. As a further alternative, the Applicant submitted that the redundancy payment should be greatly reduced.

[37] The Applicant relied on a Decision of the Commission as currently constituted in Kilsby v MSS Security Pty Ltd T/A MSS Security (Kilsby) 6 where the Commission considered Clause 12.5 of the Security Services Award and s.119 of the Act, in circumstances where the employee’s employment was terminated due to a loss of contract. In that Decision, it was held that the termination of employment was due to the ordinary and customary turnover of labour. The Applicant submitted that the circumstances in the current matter were analogous to Kilsby due to the following reasons:

    “a. The Applicant is in an industry which relies on the successful tendering for contracts in order to have work for their employees to undertake. In circumstances in the past where the Applicant has been unsuccessful for the re-tender of contracts the Applicant has no alternative employment to offer to their employees and in these circumstances the employee’s employment has been terminated.

      i. The above is analogous to the Kilsby Decision as the employer Respondent in the Kilsby Decision was also reliant on securing of tenders and contracts in order to supply a labour force.

    b. The current employment contracts of the Applicant provides in clause 14.1(b)(i) that the contract “will terminate automatically if…the Employer’s contract with the operator of a Nominated Mine Site is terminated or comes to an end”.

      i. The above is analogous to the Kilsby Decision as the employer Respondent in the Kilsby Decision had a clause in their employment contracts specifically addressing the situation of being unsuccessful in securing tenders for the contract work.

      ii. It is distinguishable from the current case due to the express clause in the employment contracts in the Kilsby Decision which provided that in the situation where employment is terminated due to an unsuccessful re-tender for a contract this does not constitute a redundancy payment pursuant to s 119(1)(a) of the Act due to being “due to the ordinary and customary turnover of labour”. The Applicant’s contract specifically goes beyond this.

      iii. In addition, the employer Respondent in the Kilsby Decision had provisions in their letter of appointment which provides same and also refers to clause 12.5 of the Security Award. That is, in the event they were unsuccessful in securing on-going tenders the letter of appointment set out redundancy was not payable on those grounds.

      iv. Furthermore, the employer Respondent in the Kilsby Decision relied on findings from the Fair Work Ombudsman (FWO) that investigated a previous claim for redundancy payment in similar circumstances to the employee Applicant. The FWO findings concluded that in those circumstances redundancy payment is not due pursuant to ss 119(1)(a) and 119(1)(b) of the Act.

      v. Notwithstanding the distinguishable features from the Kilsby Decision, the Applicant submits that due to the clause in the employment contracts the Kilsby Decision is overall analogous with the current circumstances.

    c. The Applicant communicates via information briefs sent to all employees advising them of any tender renewal dates for on-going contracts. An example of an information brief is set out in the attachment Example Information Brief to these submissions. The Example Information Brief clearly provides to the Applicant’s employees “as everyone is aware Wesfarmers Curragh are currently rewriting their scope of works for the upcoming tender for Emergency Services onsite. To provide some stability Wesfarmers Curragh Corporate and ER24 have agreed to a six month extension to our current contract. The new extension is current up to and including the 30 September 2016.”

      i. The above is analogous to the Kilsby Decision as a part of the ratio decidendi in the Commission’s decision was that the employer Respondent had previously communicated to the employee Applicant that their position and ongoing employment was subject to successfully retendering for the contract.

    d. The loss of the BMA sites contract was not due to the Applicant not re-tendering for the contract nor was it due to a general economic downturn.

      i. In the ratio of the Kilsby Decision the Commission noted the factors that was considered in its decision that redundancy payment not being payable (pursuant to ss 119(1)(a) and 119(1)(b) of the Act) was due to the termination of the employee’s employment and not due to the general downturn nor did the employer Respondent turn down the contract.

    e. Majority of the Respondent’s length of service with the Applicant is between two (2) to three (3) years’ service. The BMA sites contract was for a period of on or around three (3) years.

      i. The Kilsby Decision also alludes to the factor of service being an integral factor. Subsequently the employee Applicant in this case only had employment linked with that particular contract. Analogous to this is that majority of the Respondents in this matter have only had employment with the Applicant for the duration of the BMA sites contract.”

[38] The Applicant submitted that their unsuccessful re-tender of the BMA sites contract constitutes ordinary and customary turnover of labour and therefore under s.119 there was no entitlement to redundancy for the Respondent.

[39] Specifically in relation to security employees, the Applicant argued that there was no entitlement to redundancy payment in any event due to the operation of clause 12.5 of the Award. In accordance with clause 12.5(b), the Applicant submitted, the Respondent was offered and accepted other acceptable employment with an incoming contractor, and the Applicant had also paid the Respondent’s accrued statutory entitlements, and therefore, s.119 of the Act does not apply.

[40] As an alternative submission, if it was found that there was an entitlement to redundancy pay under s.119 of the Act, the Applicant submitted it should be reduced pursuant to s.120(1)(b)(i). This involves a consideration of whether the other employment was obtained by the Applicant and whether it is acceptable. With respect to whether the other employment is acceptable, the Applicant submitted that the following factors have been considered in previous cases:

  • Whether the work is of a like nature;


  • Whether the location of the employment being offered is “not unreasonably distant”;


  • The hours of work;


  • Whether the positions are similar; and


  • The conditions being no less favourable 7


[41] The Applicant included a list of steps they took in ‘obtaining’ the other employment, as follows:

    “a. Upon learning that the Applicant was unsuccessful in re-tendering for the BMA mine site contracts immediately contacted BMA to inform them that they would contact the incoming provides (CPA and MSS) to ensure they obtained acceptable alternative employment for the Respondents;

    b. Arranged weekly meetings with BMA to keep them informed in any issues that may arise in the process of ensuring the Respondents obtained acceptable alternative employment with CPA and/or MSS;

    c. Immediately communicated to the Respondents about the unsuccessful re-tender for the BMA mine sites;

    d. Issuing the Respondents with a consultation letter that provided the qualifications required for obtaining acceptable alternative employment with CPA and/or MSS;

    e. The consultation letter provided if any Respondents required time off to obtain any further qualifications that a written request is to be forwarded to the Applicant;

    f. Providing a tailored list to CPA and MSS of the applicable Respondents to the qualifications each incoming provider required;

    g. The Applicant writing to CPA and MSS stating they wished to work with them where possible to secure their employees with acceptable alternative employment;

    h. The Applicant directed senior management to exclusively focus their efforts on working and liaising with CPA and/or MSS to obtain acceptable alternative employment with the Respondents;

    i. The Applicant held information and consultation sessions with the Respondents in relation to the job advertisements of CPA and MSS and provided information based on the communications regarding the positions with either of the incoming providers;

    j. The information and consultation sessions were held over a range of sites, times and dates for the Respondents;

    k. A summary of the information and consultation sessions were communicated to the Respondents via email correspondence;

    l. The Applicant requested a list of the Respondents that had applied for a position with CPA and MSS;

    m. The Applicant stated to CPA and MSS that they were willing to assist with identifying any requirements that may be missing in the Respondent’s application to the incoming providers in order to secure acceptable alternative employment;

    n. The Applicant requested from CPA and MSS a list of the Respondent’s that had been offered or planed on offering positions to; and

    o. The Applicant advised CPA that they were a number of Respondents that were willing to relocate or obtain extra qualifications if required.”

[42] Further, the Applicant submitted that, in addition to the list of steps above, they took the following steps in obtaining other employment:

    “ Email correspondence from the Applicant to the Respondent as per the attachment marked TW63 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

  • 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.”


[43] 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, 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.”

[44] The Spreadsheet of Employment Comparisons provided with the application indicates that the CPA position at the Gregory Crinum Mine would be paid at an hourly rate of on or around $28.00, and that the Respondent had earned $28.00/hour in the redundant position at Gregory Crinum Mine working for the Applicant. The Spreadsheet indicates that the Respondent accepted the CPA position.

[45] In summary, the Applicant submitted that in the first instance, there is no entitlement to redundancy payment due to the ordinary and customary turnover of labour; and in the alternative, there is no entitlement to redundancy payment due to clause 12.5 of the Security Services Award. Further, in the alternative it was submitted that the redundancy payment should be reduced to nil due to the Applicant obtaining other acceptable employment with CPA, and in the alternative, if the Commission finds there is an entitlement to redundancy payment payable by the Applicant, that the steps taken by the Applicant should be considered in reducing the redundancy payment payable.

Summary of Respondent’s Submissions

[46] In relation to the entitlement under s.119, the Respondent submitted that as she was made redundant by ER24 Pty Ltd as the job which she was doing was no longer required by the company, she is entitled to redundancy pay in accordance with the Act. The Respondent did not address whether the termination was due (or not due) to the ordinary and customary turnover of labour.

[47] The Respondent submitted 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 her current position. The Respondent stated:

    “My current position is Asset Protection Officer with CPA Group at Gregory Crinum Mine Emerald Queensland. I have been employed on a fulltime basis 84 hours per fortnight @ $28AUD per hour. Duties include Site Access Administration, Drug & Alcohol Testing, Foot Patrols, Boundary & Site Patrols, attending daily pre-start meetings and any other duties requested.”

[48] 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 of May 2016.

[49] 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 23rct 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) 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 CPA, was the Notice of Termination of Employment with ER24.”

[50] 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.

[51] 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.

[52] The Respondent raised a concern in relation to the provision of a Spreadsheet by the Applicant, which detailed each of the 29 Respondent and their income or alleged income. The Respondent noted her concern in relation to confidentiality and privacy obligations of the Applicant.

[53] The Respondent stated she was entitled to $8232.00 of redundancy payment on the following basis: 7(weeks) * 42 Hours* 28.00 = 8232.00.

[54] 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 inS. 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 $8232 AUD as my legal entitlements in accordance with the Fair Work Act-S. 119.”

[55] 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’.

Summary of Applicant’s material in reply

[56] 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.

[57] 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. In 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.”

[58] 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.

[59] 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.

[60] 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.

[61] The Applicant submitted that the Respondents have 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.

[62] 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’.

[63] 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.

[64] The Applicant provided a copy of the Respondent’s latest employment contract, and relied on the following clauses:

    “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.”

[65] 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.

Summary of Respondent’s Submissions in relation to ordinary and customary turnover of labour

[66] The Respondent submitted that she did not consider the termination of her employment was due to the ordinary and customary turnover of labour. It was 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.

[67] 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 8, 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 Australia9. 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.”

Summary of Applicant’s submissions in reply on ‘ordinary and customary turnover of labour’

[68] The Applicant submitted that it has made the applications under s.120 as, prima facie, there is an entitlement to redundancy payment. The Applicant submitted that if, prima facie, the Commission finds that redundancy payment is due (i.e. that the redundancy was not “due to the ordinary and customary turnover of labour”), then the Applicant relied on its submissions regarding “obtaining acceptable alternative employment” for the Respondent and would therefore seek a variation of the redundancy payment pursuant to s.120(1)(b)(i) of the Act.

[69] The Applicant submitted, in the current circumstances, given the number of Respondents in the application, that it was in the interests of expediency for the Commission make a finding on whether the exception to redundancy payment pursuant to s.119 applies, that is, whether terminations were “due to the ordinary and customary turnover of labour”.

[70] The Applicant relied on clause 14.1(b)(i) of the Respondent’s Employment Agreement as evidence to show that the Respondent was aware the employment will terminate automatically if the contract with an operator comes to an end. Clause 14.1(b)(i) of the Respondent’s Agreement provides that “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…”.

[71] The Applicant submitted that, by the Employment Agreement’s very nature, the Respondent’s employment would be terminated automatically if the Contract came to an end and therefore there was not a “reasonable expectation” of continued employment.

[72] The Applicant submitted that clause 14.1(b) of the Employment Agreement does not purport, in any way, to overrule or contract out of the NES provisions.

[73] The Applicant noted that, whilst the Kilsby Decision arose in the context of a s 739 dispute matter, it addressed threshold matters relevant to the current proceedings given the Applicant maintains its submissions regarding the “ordinary and customary turnover of labour”. Furthermore, the Applicant submitted that the obiter in the Kilsby Decision is relevant in particular to those Respondents that have the Security Services Industry Award 2010 apply to their employment.

[74] The Applicant submitted that the Commission, in the Kilsby Decision, considered that the terminations of employment were not due to the general downturn, nor did the employer Respondent reject the contract. As such, considering the factors set out in the Kilsby Decision, the Applicant submitted that redundancy payment is not due to any of the Respondents on the basis that the unsuccessful re-tender of the BMA sites contracts constituted “ordinary and customary turnover of labour” and pursuant to s.119(1)(a) of the Act, there is no entitlement for redundancy pay owing to the Respondents.

[75] The Applicant submitted that they conceded to the jurisdiction of s.120 of the Act in this matter, and that the matter was being pursued as a variation to redundancy payment pursuant to s 120(1)(b)(i) of the Act, on the basis that there is a prima facie entitlement to redundancy payment.

[76] The Applicant later submitted that, should the Commission find that there is no entitlement to redundancy payment, there is no requirement for the Commission to determine whether a variation to redundancy payment is due.

[77] The Applicant then stated that if the Commission determined there is no entitlement to redundancy payment “due to the ordinary and customary turnover of labour” that the Applicant will discontinue or withdraw the matter and commence an application under s.739 of the Act.

Consideration

[78] An application pursuant to s.120 has multiple elements, of which the Commission must be satisfied, prior to issuing an Order.

[79] Firstly, the wording of the section is that an entitlement to redundancy pay must exist, in order for the Commission to vary that redundancy pay entitlement. The Commission has previously held that in order for s.120 of the Act to have any application, there must first be an entitlement to redundancy pay pursuant to s.119 of the Act. 10 Further, it was held that where there is no entitlement under s.119, there can be no order to reduce the “entitlement” pursuant to s.120.11

[80] Employees are entitled to redundancy pay pursuant to the provisions of the Act. Section 119 relevantly provides that an employee is entitled to be paid redundancy pay by the employer, if the employee’s employment is terminated at the employer’s initiative, because the employer no longer requires the job done by the employee, to be done by anyone, except where this is due to the ordinary and customary turnover of labour.

[81] It was the Applicant’s submission that the Respondent’s had a prima facie entitlement to redundancy payment under s.120, but later relied on the exception that the terminations were due to the ordinary and customary turnover of labour, and therefore submitted that there was no entitlement.

Ordinary and Customary Turnover of Labour

[82] The relevant extract from section 119 of the Act is repeated for ease of reference as follows:

119 Redundancy pay

    Entitlement to redundancy pay

    (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

      (a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or…

[83] The Applicant submitted that the employment of the Respondent was terminated at their initiative because they no longer required the job done by the Respondent to be done by anyone and that this was due to the ordinary and customary turnover of labour. Therefore, the Applicant argued, the Respondent is not entitled to be paid redundancy pay by the Applicant.

[84] The Applicant relied on the Decision of Kilsby and submitted that the present circumstances were similar to this matter. The Applicant’s argument can be summarised as follows:

  • The Applicant is in an industry which relies on the successful tendering for contracts and if unsuccessful for the re-tender of contracts, and no alternative employment can be offered, the employee’s employment has been terminated.


  • The current employment contracts of the Applicant provides that the contract “will terminate automatically if…the Employer’s contract with the operator of a Nominated Mine Site is terminated or comes to an end”.


  • the employer in the Kilsby Decision relied on findings from the Fair Work Ombudsman (FWO) that investigated a previous claim for redundancy payment in similar circumstances to the employees of the Applicant. The FWO findings concluded that in those circumstances redundancy payment is not due pursuant to ss 119(1)(a) and 119(1)(b) of the Act.


  • The Applicant communicates via information briefs sent to all employees advising them of any tender renewal dates for on-going contracts. The Example Information Brief clearly provides to the Applicant’s employees “as everyone is aware Wesfarmers Curragh are currently rewriting their scope of works for the upcoming tender for Emergency Services onsite. To provide some stability Wesfarmers Curragh Corporate and ER24 have agreed to a six month extension to our current contract. The new extension is current up to and including the 30 September 2016.”


  • The loss of the BMA sites contract was not due to the Applicant not re-tendering for the contract nor was it due to a general economic downturn.


  • Majority of the Respondent’s length of service with the Applicant is between two (2) to three (3) years’ service. The BMA sites contract was for a period of on or around three (3) years.


Consideration of ‘ordinary and customary turnover of labour’ exception

[85] A Full Bench of the Commission in Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters' Union of Australia 12 considered the exception to a redundancy entitlement due to the “ordinary and customary turnover of labour” in the context of s.119 of the Act. The Full Bench held as follows:

    “[27] In order to determine whether the Exception applies in a given case it is necessary to consider the normal features of the business and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business. This is a question of fact, to be determined on the basis of the circumstances of each termination and each business. It necessarily focuses on the business circumstances of the employer.

    …

    [33] Based on the material before us, we are of the view that it was the common practice of Compass to terminate the employment of employees when a contract is lost, especially Department of Defence contracts. It was also common for employees to be redeployed where this was possible. The notion of employing employees for a particular contract implies a link between the contract and the employment. It carries with it the understanding that loss of the contract could well lead to termination of the employment. Indeed this was expressly stated in many of the relevant contracts. Although the contracts are worded differently, they often contain a clause similar to the following:

      “Term of Employment:
      As the Company is a contractor, your employment is subject to operational demands, requirements of the client and tenure of the contract which the Company has with its clients. Continuous employment, salary, working hours and/or conditions cannot be guaranteed during quiet periods in the business, eg semester breaks, sporting calendars and/or if village numbers fluctuate (less or more).

      As a result of changes in operational demands, requirements of the client and tenure of the contract, you may be given the opportunity or required to transfer to another location. If this occurs, your salary, terms and conditions maybe varied. These changes will be discussed with you and confirmed in writing. Please be aware that if the alternate position offered is not accepted by you then the Company may be unable to continue to employ you further in which case your employment will be terminated by the Company giving notice in accordance with the provisions of this contract.

      This offer of employment is made on the basis that you may be required to work at different sites, depending on the Company and the Client’s needs.”

    [34] Compass had a long standing practice not to make redundancy payments at the conclusion of contracts pursuant to the Exception. If this position was sought to be altered, one would have thought that a variation to the terms of the standard redundancy clauses in Compass enterprise agreements would have been made. No such variations were made. This suggests that the mutual intention of the parties to the agreements was to apply Compass’ interpretation of the standard redundancy pay wording.

    [35] In all of the circumstances, it is in our view appropriate to make the findings contended for by Compass. More specifically, we have concluded that the terminations of employment arose from the loss of the Department of Defence contracts and in the context of Compass’ business, this was due to the ordinary and customary turnover of labour.”

[86] In line with the above Full Bench Decision, it is necessary to consider the normal features of the Applicant’s business and then determine whether the termination of the Respondent’s employment is properly described as falling within the ordinary and customary turnover of labour in that business.

[87] The circumstances of each termination and each business must be considered. Further, the focus is on the business circumstances of the Applicant.

[88] It is accepted that the Applicant’s business is in an industry which relies on the tendering for contracts. The employment contract of the Respondent links the Applicant’s contract with the Respondent’s employment. Clause 14.b(1) of the Respondent’s employment contract states that the employment agreement will terminate automatically if the Applicant’s contract with the operator of the Nominated Mine Site is terminated or comes to an end.

[89] The business circumstances of the Applicant was such that if no redeployment could be made within the Applicant, the Respondent’s employment would be terminated.

[90] However, the Full Bench in Compass also took into account the ‘longstanding practice’ of that employer not to make redundancy payments at the conclusion of contracts pursuant to the exception. At the hearing, Mr Tommy Wicht on behalf of the Applicant confirmed that ER24 Pty Ltd had, in circumstances of previous loss of contracts, paid employees redundancy pay where they could not be redeployed within ER. The Applicant submitted that they did this as a goodwill gesture and it was due to the fact that they had now lost 7 contracts at once that they were relying on the exception for ‘ordinary and customary turnover of labour’. There was no evidence of the Applicant in terms of previously relying on the exception to not pay redundancy (due to the terminations being ordinary and customary turnover of labour), prior to filing submissions in respect of these applications before the Commission.

[91] It is noted, however, that the original applications were made under s.120(1)(b)(i) and did not seek the variation of redundancy pay on the basis of an incapacity to pay. This was open to the Applicant if there was a financial issue with the payment of redundancy related to the loss of the 7 contracts.

[92] On the information before the Commission, I am not satisfied that the termination of the Respondent’s employment, in the context of the Applicant’s business, was due to the ordinary and customary turnover of labour. It was not the Applicant’s practice to rely on this exception, as Mr Wicht stated that redundancy payments had been made in the past albeit in ‘goodwill’. Further, the fact that the applications were made stating that there was an entitlement to redundancy pay, with no mention of ordinary and customary turnover of labour, and only raised in the Applicant’s submissions (following a refusal of the Commission to issue Orders requiring production of documents), does not lead to the conclusion that it was the common practice of the Applicant to rely on this exception.

[93] Accordingly, the ‘exception’ in s.119 for the ordinary and customary turnover of labour, is not applicable in these circumstances.

Clause 12.5 of the Security Services Industry Award 2010

[94] Whilst the applicable Award provides that redundancy pay is provided for in the NES, clause 12.5 provides for circumstances involving a change of contract, and details a circumstance where s.119 does not apply.

[95] Clause 12.5(a) of the Award provides details on when the clause applies, as follows:

    (a) This clause applies in addition to clause 8—Consultation of this award and s.120(1)(b)(i) of the Act, and applies on the change to the contractor who provides security services to a particular client from one security contractor (the outgoing contractor) to another (the incoming contractor).

[96] Section 121(2) of the Act provides:

121 Exclusions from obligation to pay redundancy pay

    …

    (2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

[97] By operation of s.121(2) of the Act a Modern Award may include a term specifying situations, above and beyond s.121, which limit the operation of s.119 to the termination of an employee’s employment.

[98] Clause 12.5 of the Act is expressed as being “in addition” to s.120(1)(b)(i) of the Act.

[99] As noted above, the Commission has previously held that in order for s.120 of the Act to have any application there must first be an entitlement to redundancy pay pursuant to s.119 of the Act 13 and it was held in that matter that where there is no entitlement under s.119 there can be no order to reduce the “entitlement” pursuant to s.120.14

[100] Clause 12.5(b) is repeated as follows:

    b) Section 119 of the Act does not apply to an employee of the outgoing contractor where:

      (i) the employee of the outgoing contractor agrees to other acceptable employment with the incoming contractor; and

      (ii) the outgoing contractor has paid to the employee all of the employee’s accrued statutory and award entitlements on termination of the employee’s employment.

[101] It is not in dispute that there was a change to the contractor who provided security services to BMA from ER24 Pty Ltd (the outgoing contractor) to CPA and MSS (the incoming contractors). Clause 12.5 therefore applies.

[102] In this case, s.119 will not apply to the Respondent where they have agreed to other acceptable employment with either CPA or MSS, and ER24 Pty Ltd has paid to the Respondent all of their accrued statutory and award entitlements on termination. If s.119 does not apply to the Respondent, there is no entitlement to redundancy pay and it follows that there can be no order to reduce the “entitlement” pursuant to s.120.

[103] With respect to Clause 12.5(b)(ii), the Applicant submitted that it had paid the Respondent’s accrued statutory entitlements prior to the commencement of employment with the incoming contractors. This was not refuted by the Respondent.

[104] With respect to Clause 12.5(b)(i), the Applicant submitted that the Respondent agreed to other acceptable employment with an incoming contractor.

[105] The Respondent accepted a position with CPA.

[106] For clause 12.5 to have effect such that s.119 does not apply, the Commission must be satisfied that the other employment with the incoming contractor was ‘acceptable’.

[107] The Commission must consider the ‘other’ or ‘new’ employment, to enable the Commission to assess the “acceptable” nature of that employment.

[108] In the matter of Australian Chamber of Manufacturers v Derole Nominees Pty Ltd 15, the Full Bench stated as follows:

    “What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

    Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of a like nature, the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.” 16

[109] In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd 17, the Full Bench in considering acceptable alternative employment stated:

    “...We do not propose to repeat here the thoroughly detailed argument presented by counsel for the union. A considerable part of that case was devoted to questions of onus and to supporting the proposition that the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters. It was argued that the failure of the employer to adduce evidence of such matters caused the company to fail to make out a case for an exemption. We have no doubt that there is an onus on the employer invoking cl 51(c) and that matters of the kind referred to by the union may be relevant in assessing the position in a particular case. We do not believe it to be necessary to make that examination in every case. Where an employee has accepted alternative employment in circumstances as those here, then in the absence of positive evidence going to the unacceptability of that employment, including unacceptable features of it, then the Commission is entitled to hold the employment as an acceptable alternative and relieve the employer of the obligation under cl 51(c) of the award...” 18

[110] Noting that Respondent has not made submissions on whether the employment acceptable, it is not in dispute that the Respondent has accepted a position with CPA on the same hourly rate and at the same location. The Respondent described her current position as “Asset Protection Officer with CPA Group at Gregory Crinum Mine Emerald Queensland. I have been employed on a fulltime basis 84 hours per fortnight @ $28AUD per hour. Duties include Site Access Administration, Drug & Alcohol Testing, Foot Patrols, Boundary & Site Patrols, attending daily pre-start meetings and any other duties requested”.

[111] This is not dissimilar from the Applicant’s description of the Respondent’s redundant position with the Applicant. The Respondent did not make any submissions as to the acceptability or differences between the two positions. On the material provided I am satisfied that the other employment with the incoming contractor CPA was agreed to by the Respondent and was acceptable.

[112] Accordingly, on the evidence before the Commission, clause 12.5(b) is satisfied such that 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. The effect of clause 12.5(b) is that s.119 does not apply to the Respondent.

[113] As s.119 does not apply to the Respondent, the Respondent does not have an entitlement to redundancy pay. The Commission cannot make an order to reduce a redundancy payment where there is no entitlement to such.

Conclusion

[114] Accordingly, for the aforementioned reasons, taking into account all of the circumstances, there is no entitlement to redundancy pay under s.119 and therefore section 120(1)(a) of the Act is not satisfied. This application is therefore dismissed.

[115] I Order accordingly.

COMMISSIONER

 1   [2015] FWCFB 8040

 2   [2014] FWC 7475

 3   [MA000016].

 4   Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters' Union of Australia [2015] FWCFB 8040.

 5  Kilsby v MSS Security Pty Ltd T/A MSS Security[2014] FWC 7475.

 6   [2014] FWC 7475

 7   Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC; Sutherland Division of General Practice Incorporated [2012] FWA 5615.

 8 (1983) 7 IR 273

 9   [2015] FWCFB 8040

 10   Application by CAE Australia Pty Ltd [2012] FWA 7992 per Watson VP at [13].

 11   Ibid; also refer M & S Dickson [2011] FWA 5206 per Lewin C.

 12   [2015] FWCFB 8040

 13   Application by CAE Australia Pty Ltd [2012] FWA 7992 per Watson VP at [13].

 14   Ibid.

 15 (1990) 140 IR 123.

 16 (1990) 140 IR 123 at pp128.

 17 (1988) 27 IR 226.

 18 (1988) 27 IR 226 at pp230 - 231.

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Cases Citing This Decision

14

Er 24 Pty Ltd T/A Er 24 v Mrs Glenda De Winter [2017] FWC 395
Er 24 Pty Ltd T/A Er 24 v Ms Jamie Lee Hudspith [2017] FWC 394
Er 24 Pty Ltd T/A Er 24 v Mr Jason Corey Euler [2017] FWC 392
Cases Cited

7

Statutory Material Cited

0

Compass Group (Australia) Pty Ltd v National Union of Workers [2015] FWCFB 8040
Mr Edward Kilsby v MSS Security Pty Ltd T/A MSS Security [2014] FWC 7475
Sutherland Division of General Practice Incorporated [2012] FWA 5615