Gaurasundara Torrisi v ISS Security Pty Limited

[2024] FWC 1625

[2024] FWC 1625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Gaurasundara Torrisi
v

ISS Security Pty Limited

(C2023/7286)

DEPUTY PRESIDENT LAKE BRISBANE, 21 JUNE 2024

Alleged dispute about any matters arising under the enterprise agreement – dispute regarding redundancy – standing – application dismissed.

1. On 27 November 2023, Mr Gaurasundara Torrisi (the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act).

1. The Applicant was employed by ISS Security Pty Limited (the Respondent) on a full-time basis as an Aviation Protection Officer (APO), performing security duties at the Gold Coast Airport. During his employment. The Applicant was covered by the ISS Queensland Aviation Security Enterprise Agreement 2022 (the Agreement).

1. On or around 28 April 2024, the Respondent was notified by Queensland Airports Limited that its aviation security services contract would not be renewed and would end on 30 June 2023. The Respondent informed the Applicant and other employees of this, and on 23 May 2023, the Applicant received a written notice of termination, stating that his employment would end on 30 June 2023.

1. Relying on s.121 of the Act and clause 16.11 of the Agreement, the Applicant’s termination letter stated that the Respondent would not offer redundancy pay to employees who accept alternative employment with the incoming contractor.

1. Section 119 of the Act provides a general obligation of an employer to pay redundancy pay. Section 121 provides an exception to this where a term of an enterprise agreement incorporates a modern award term that specifies situations where s.119 does not apply.

1. Clause 16.11 of the Agreement incorporates clause 32.4 of the Security Services Industry Award 2020 (the Award). Clause 32.4 of the Award states that redundancy is not payable where the employee agrees to other acceptable employment with the incoming contractor, and the outgoing contractor has paid all the employee’s accrued entitlements on termination.

1. The parties underwent a period of consultation, and the Applicant accepted an offer of redeployment with Trident Services (Trident), the incoming contractor, as an APO at the Gold Coast Airport.

1. As the Applicant accepted an offer of employment with Trident, the Respondent did not pay the Applicant any redundancy pay in accordance with Clause 16.11 of the Agreement. The Applicant states that he was not offered acceptable alternative employment given that his sick leave was not transferred over and that the Respondent is bound by the obligation in s.119 of the Act and clause 16.11 of the Agreement to pay redundancy pay.

Consideration

1. Only a current employee has standing to make an application under s.739 of the Act. A past employee whose employment had come to an end is excluded from the operation of this provision unless the dispute arose during employment and continued after its termination. [1]

1. The Applicant’s employment ended on 30 June 2023 and this Application was lodged to the Commission on 27 November 2023. The Applicant did not raise the dispute until after he accepted a position with Trident at the same Airport. The Application has not been made in accordance with the dispute resolution procedure given that he is not a current employee, and the Commission does not have power to arbitrate the matter under s.739(1).

1. To resolve all doubts raised by the Applicant, the Applicant would not have an arguable case. Sick leave is not an entitlement is paid out when employment ends. The Applicant had accepted a contract with the new contractor of Gold Coast Airport and therefore was not entitled to redundancy in accordance with clause 32.4 of the Award which was incorporated into the Agreement.  ISS were not obligated to pay redundancy given that the Applicant was given other acceptable employment working in the same role at the same airport with Trident, and ISS had paid all the accrued statutory entitlements that the Applicant was entitled to.

Conclusion

1. The Applicant does not have standing to the application under s.739 of the Act. The application is dismissed.

DEPUTY PRESIDENT

[1] See Fairall v St George & Sutherland Community College Inc (2012) 226 IR 402; Shields v Alfred Health [2012] FWA 162 at [29]-[31]; Construction, Forestry, Mining and Energy Union (105N) v Broadspectrum Australia Pty Ltd[2017] FWCFB 269 at [42].

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