Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking

[2015] FWC 5016

[2015] FWC 5016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking
(C2015/1113)

COMMISSIONER ROBERTS SYDNEY, 2 OCTOBER 2015

Application to vary redundancy pay – offering of suitable alternative positions to redundant employees – application granted.

[1] This decision concerns an application made by Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking (Cameron or the Company) made pursuant to s.120 of the Fair Work Act 2009 (the Act). The Company seeks to reduce to zero the amount of redundancy pay that it would otherwise have been required to pay to the following persons pursuant to s.119 of the Act:

● Joe Becvarovski
● Alan Carpenter
● Heath Carr
● Joseph Cushieri
● Paul Davis
● Graham French
● Kurt Holmes
● David Kay
● Darren Kearney
● William Lawrence
● Milenko Markov
● Leslie Myers
● Robert Parrish
● Shaun Roberts
● Nathan Rowles
● Alan Smith
● Darren Thorn
● Paul Voroshine
● Gregory Wills

[2] The matter initially came before me for a conference on 28 January 2015. Directions were then issued on 28 January 2015 for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 20 May 2015. The application then came on for hearing in Sydney on 21, 22 May 2015, 11 June 2015 and 3 July 2015. Cameron was represented by Mr M Baroni, solicitor of McCabes. Mr T Warnes represented the TWU, Mr Becvarovski, Mr Davis, Mr French, Mr Holmes, Mr Kearney, Mr Lawrence, Mr Thorn and Mr Wills. Mr Myers, Mr Carpenter and Mr Voroshine represented themselves.

[3] Mr Rohan and Mr Yeo (under summons) gave evidence for Cameron.

Background

[4] Cameron is a contract logistics provider to the transport and warehousing industry in Victoria, New South Wales, South Australia and the Northern Territory, with limited services in Queensland. In NSW it has, as at the last date of hearing, 61 full time and 32 casual employees together with a number of contractors and a total fleet of 226 trucks, comprising 52 heavy rigid vehicles, 164 semi-trailers and 10 b-double semi-trailers. The relevant enterprise agreement is the Glen Cameron NSW EBA, 2009 to 2012 (the Agreement).

[5] For some eight years, Cameron provided services to Orora Limited at Revesby and Smithfield, New South Wales, but lost that contract (the Contract) with effect from 31 December 2014 when Orora transferred its business to Dangerous Goods Logistics (Aust) Pty Ltd (DGL) following a tender process. The loss of the Contract led to the displacement of 26 Cameron employees who were employed to service that contract.

[6] Cameron made the application currently before me on the basis that it had found suitable alternative employment within the Company’s operations for those employees displaced by the loss of the Contract. The Respondents to this application claim broadly that the offers of alternative employment with Cameron were either a sham or unsuitable for various reasons.

Evidence

G Rohan

[7] Mr Rohan gave sworn evidence and adopted a witness statement 1. He said that he is Cameron’s Group Human Resources and Industrial Relations Manager and has held that position for nine years. Mr Rohan has been in the industry in which Cameron operates for some 40 years, 18 of which have been with Cameron.

[8] Mr Rohan went on to say: “Approximately six to seven months before the tender process began, the Applicant took a defensive stance and did not fill roles which had become vacant within the business. The vacant positions were back filled with casual labour hire. This was to ensure that in the event the Applicant was not successful in the tender there would be positions available for the affected employees.”

[9] On 10 October 2014 Mr Rohan met with affected employees at Revesby and Smithfield NSW and informed them of Cameron’s unsuccessful tender for the Contract. A letter was read to the employees which said as follows:

“We regret to inform you that we have been unsuccessful in our tender for the [Orora] NSW contract.

[Orora] have informed us that our tenure will cease on 31/12/2014 or thereabouts, this date requires more discussion between the parties and at this point is a guide only.

The winning tender was from [DGL], a company predominately from Queensland. They have indicated that they are prepared to consider discussing ongoing opportunities with our current employees but there are no guarantees.

At the appropriate time we will enter into discussions with them on your behalf.

We will of course look to fill any vacancies at our other sites in NSW with current employees from the Aurora contract or for those looking to relocate to other states a transfer may be a viable option.

Any current vacancies will be communicated to you separately and you will need to apply for a transfer to those positions.

The bad news is still very raw but we thought that the priority was to inform you of the outcome.

There are many more discussions to take place to ensure a smooth hand over and we ask for your support in maintaining our current performance to our client.

We will of course communicate with you going forward through the process as more information becomes available” 2

[10] During the following week, three employees were transferred to vacant Cameron positions at Yennora and Greystanes NSW.

[11] Mr Rohan said that all of the Respondents were solely engaged in servicing the Contract and this meant that when the Contract ended, the roles performed by those employees were no longer required.

[12] Mr Yeo met with the affected employees on 7 November 2014 and informed them of current vacancies within the Company 3. On 21 November he asked Mr Yeo to inform the following employees in writing that their roles would become redundant on and from 26 December 2014:

“a. Gregory Wills;
b. Graham French;
c. Joe Becvarovski;
d. Kurt Holmes;
e. William Lawrence; and
f. Paul Voroshine.”

[13] The above notifications were made in compliance with the terms of the Agreement. Mr Lawrence was later offered an additional week’s work with Cameron on the Contract.

[14] On 10 December 2014, he asked Mr Yeo to inform the following employees in writing that their roles would become redundant on and from 31 December 2014:

“a. Alan Smith;
b. Heath Carr; and
c. David Kay”

[15] Again this action was taken in compliance with the Agreement.

[16] On 17 December 2014, he asked Mr Yeo to inform the following employees in writing that their roles would become redundant on and from 31 December 2014:

“a. Joseph Cushieri;
b. Paul Davis;
c. Milenko Markov;
d. Shaun Roberts; and
e. Nathan Rowles.”

[17] Again this was done in compliance with the Agreement.

[18] “All of the Respondents were offered suitable alternative employment with the Applicant at the time they were given formal notice of the impending redundancies.”

[19] Mr Rohan said that between 3 December and 31 December 2014 the following employees advised Cameron that they did not wish to accept an offer of alternative employment:

● Mr G French
● Mr J Becvarovksi
● Mr W Lawrence
● Mr L Myers
● Mr P Voroshine
● Mr R Parrish
● Mr K Holmes
● Mr D Thorn
● Mr D Kay
● Mr H Carr
● Mr N Rowles
● Mr S Roberts
● Mr P Davis
● Mr J Cushieri
● Mr D Kearney

[20] On 17 December and 24 December 2014 respectively, Mr Markov and Mr Smith advised Cameron that they accepted the offers of alternative employment.

[21] “In early January 2015 an advertisement was to be posted on SEEK to fill the following positions:

a. 3 x Full Time HC [Heavy Combination] drivers at Woolworths Yennora

b. 2 x Full Time Relief HC drivers at Woolworths Yennora.”

[22] “The advertisement was to be posted by my assistant but our Woolworths Contract Manager requested that the advertisement not be posted as there were some casual labour hire staff he wanted to assess.”

[23] “The Applicant has been unable to fill five truck driver positions at the Woolworths Yennora site. The positions were available for the Orora contract employees who subsequently rejected the offers.”

[24] Mr Rohan also adopted a supplementary statement 4, in reply to the evidence of four of the respondent employees.

[25] In relation to the statement of Mr Wills, he said that there was initial confusion in his letter to employees of 10 October 2014 where ‘DHL’ was referred to as taking over the Orora contract rather than the ‘DGL’ but this was corrected during the first meeting with employees. In relation to the statement of Mr Thorn, Mr Rohan said that Mr Thorn was employed as a Transport Allocator at the Orora site when he resigned.

[26] In relation to the statement of Mr Becvarovski, Mr Rohan said that he told employees that he would talk to the incoming contractor about possible transfers of Cameron employees but he did not say anything in relation to DGL not taking on the transfer of any employee benefits. Mr Rohan further said that he told employees “that we had some jobs available immediately and that there were others that would be available going forward and encouraged the employees to apply for the vacancies.”

[27] In relation to the statement of Mr Carpenter, Mr Rohan said that Mr Carpenter was employed at the Orora site as a Pallet Controller who also did some stock control duties. “An inventory controller only looks after stock control usually but some inventory controllers also look after pallet control.”

[28] In cross-examination by Mr Warnes, Mr Rohan was questioned at considerable length concerning the availability of alternative positions for employees displaced by the loss of the Contract. I have paid regard to that material.

[29] Mr Rohan went on to say that DGL expressed an interest in employing Cameron employees who were to be displaced by the loss of the Contract and that Cameron had discussions with DGL about this. Cameron told DGL that it did not want DGL to take any of those employees as Cameron wished to retain them. DGL responded that they still intended to approach displaced employees. Mr Rohan said that he was aware that some Cameron employees took up positions at DGL but was unaware of how many did so.

[30] In cross-examination by Mr Carpenter, Mr Rohan was questioned about the genuineness of the alternative position offered to Mr Carpenter. Mr Rohan maintained his evidence that the position was a real one.

[31] In cross-examination by Mr Myers, Mr Rohan was asked whether the position offered to Mr Myers was already occupied by another person. Mr Rohan said that the Company did not wish to lose Mr Myer’s expertise and was therefore happy to employ him at Greystanes on the same rate of pay he had previously received at Revesby.

[32] Nothing of significance arose in re-examination.

M Yeo

[33] Mr Yeo gave sworn evidence and adopted a witness statement 5. At the time the Contract ended, Mr Yeo was Cameron’s New South Wales State Manager but subsequently left the Company’s employ. He said that 26 employees were specifically employed to service the Orora contract and when the contract was lost, he began identifying vacant roles which could be filled by the affected employees. Vacancies were identified at the Greystanes and Yennora sites. He subsequently met with Mr Wills, Mr French, Mr Becvarovski, Mr Holmes, Mr Lawrence and Mr Voroshine, telling them of the coming redundancies and answering questions about alternative positions. “All of the Respondents were offered suitable alternative employment with the Applicant at the time I gave formal notice of the impending redundancies.”

[34] Mr Yeo’s evidence went on in some detail to deal with the identified ‘suitable alternative employment’ and I have paid regard to that material. Mr Yeo’s statement also contained a list of all employees and comparisons of “distances the affected employees were required to travel from their homes for the Orora contract work compared to the distance they would be required to travel if they accepted the offer of suitable alternative employment at either the Woolworths Yennora or Greystanes sites.” I have again paid regard to that material.

[35] Between 28 November and 31 December 2014, the following employees notified him that they declined an offer of ‘suitable alternative employment’:

● Mr G French;
● Mr J Becvarovski;
● Mr L Myers;
● Mr P Voroshine;
● Mr R Parrish;
● Mr W Lawrence;
● Mr D Kay;
● Mr K Holmes;
● Mr H Carr;
● Mr N Rowles;
● Mr D Thorn;
● Mr S Roberts;
● Mr P Davis;
● Mr J Cushieri;
● Mr D Kearney.

[36] “I do not recall the conversations I had with each employee when they handed back the signed declinature however, I do recall that when handing me the signed declinature, Nathan Rowles said words to the following effect:

NR: Thanks for the offer but I have decided to go with DGL. The start times are more suitable and I live just around the corner.”

[37] “I recalled that Joe Becarovski said words to the following effect:

JB: I have decided to stay with DGL as I need to work afternoon shift to look after my elderly parents and take them to appointments.”

[38] On 17 December and 24 December 2014 respectively, he was notified by Mr Markov and Mr Smith that each would accept the offer of ‘suitable alternative employment’.

[39] Mr Yeo also adopted a supplementary witness statement 6. In his supplementary statement, Mr Yeo responded to the evidence of several of the respondent employees.

[40] In relation to the statement of Mr Davis, he said that he had “advised [Mr Davis] if he did accept the [alternative] role then all his entitlements would continue.” In relation to the statement of Mr Wills, Mr Yeo said that the letters given to employees offering alternative positions were tailored to specific offers to specific employees. In relation to the statement of Mr Thorn, Mr Yeo said that Mr Thorn was offered a role as a Fleet Controller at Greystanes.

[41] In relation to the statement of Mr Becvarovski, Mr Yeo said that Mr Becvarovski’s employment contract stated that he was employed by Cameron as a truck driver. In relation to the statement of Mr Holmes, Mr Yeo said: “The job functions were fully explained and a job description of the positions was issued at the same time the redundancy letter was issued.”

[42] In relation to the statement of Mr Lawrence, Mr Yeo denied that Mr Lawrence was offered a position as a courier driver. Mr Lawrence was offered a position as a truck driver “which would require him to drive the company’s 1 Tonne ute … in a permanent run doing multiple deliveries.” In relation to the statement of Mr Kearney, Mr Yeo said that Mr Kearney was offered a truck driver position at Greystanes driving the company’s 1 Tonne ute.

[43] In relation to the statement of Mr French, Mr Yeo said that Mr French was offered a truck driver position at Yennora with a start time of 8 am. In relation to the statement of Mr Voroshine, Mr Yeo denied offering Mr Voroshine a relief driving position which meant he could be called to any three locations on any given day. Mr Voroshine was offered a role as a truck driver at Yennora. In relation to the statement of Mr Myers, Mr Yeo said that he told Mr Myers that the offered alternative position “will be allocating the fleet as the fleet allocator”.

[44] Mr Yeo denied telling any employee that they would not receive statutory entitlements if they did not sign a letter to the effect that they had been offered a suitable alternative position.

[45] In cross-examination by Mr Warnes, Mr Yeo said that he was responsible for identifying available alternative positions at Greystanes and Mr A Leach was responsible for those at Yennora. Mr Yeo was then questioned extensively as to the details of alternative jobs and the process involved in dealing with the displaced employees being offered alternative roles. Mr Yeo said that of the 26 redundant roles, 22 were driving positions.

[46] Mr Yeo was asked why the Company did not just redeploy redundant employees to other sites per clause 29 of the Agreement. He replied that the Company’s approach was to make offers to employees rather than to direct them. “I would have thought that that process would enhance the relationship between management, the company and the actual workers.” 7

[47] Mr Yeo went on to say, in response to question from Mr Warnes, that he considered utes to be trucks which perform the same role as large vehicles: “The job is delivering freight. Both vehicles deliver freight.” 8

[48] Mr Yeo went on to strongly deny that he told any employee that their statutory entitlements might be withheld on termination.

[49] In re-examination, Mr Yeo said that Mr Parrish was offered a driving position at Greystanes but shortly thereafter he tendered his resignation.

D Thorn

[50] Mr Thorn gave sworn evidence and adopted a witness statement 9. Mr Thorn is a member of the TWU who commenced employment with the Company in late 2003. He initially worked as a truck driver on another Cameron Contract and transferred to Orora’s Revesby site when the earlier contract was lost. At the time he was made redundant he was employed full time as an Allocator and Supervisor at Orora.

[51] He was advised by Mr Rohan during a yard meeting in late 2014 that the Orora contract had been lost and that work would finish on 31 December 2014. He was further advised by Mr Rohan that DGL was the incoming contractor but Mr Rohan was unable to answer questions about future employment prospects. Mr Thorn did not hear anything about alternative work for about one month after the yard meeting but was later advised that driving positions were available on a Woolworths contract as well as at head office. No supervisor or allocator positions were on offer.

[52] “I did not apply for any of the driving positions. It was not the work that I was doing for Cameron at the time I was made redundant and I did not want to return to that work.”

[53] Around 21 November 2014 he was advised by Mr Yeo that he must sign a letter indicating that he had been offered an alternative position and indicating whether or not he had accepted it. “Mr Yeo stated that if I did not sign the letter and return it, I would not be paid my owed annual leave and long service leave on my redundancy.”

[54] Mr Thorn finished work with the company on or about 19 December 2014, taking annual leave “for the rest of the contract leading up to my redundancy”. The Company later confirmed his redundancy in writing but advised that it was making an application to this Commission for an order that it was not required to make any redundancy payment.

[55] “In early November 2014 I applied online for a Shift Supervisor job with DGL, who were in fact the incoming contractors on the Orora contract. Camerons had no role in this process. I was successful in my application. On 2 January 2015 I commenced work for DGL. This is a similar role to what I did with Camerons, however the job requires different paperwork and more responsibility with reporting to management.”

[56] In cross-examination by Mr Baroni Mr Thorn said that he commenced work for Cameron on the Orora contract then moved to two other contract locations then back to Orora. He agreed that there was no definition for the allocator or supervisor position.

[57] Mr Thorn went on to say that he had been verbally offered a job by DGL at the end of November 2014. He did not tell Cameron about this. Mr Thorn agreed that he already had a job arranged with DGL when he was offered an alternative position by Cameron. He further agreed that he did not tell Cameron because he wanted a redundancy and therefore had no interest in taking an alternative position.

[58] Mr Thorn conceded that his evidence about not applying for any driving position was incorrect as he was never offered such a position. He maintained his evidence that he was told that he would not receive his statutory entitlements unless he signed a letter acknowledging that he had been offered an alternative position. In relation to the offer of an alternative position, Mr Thorn was asked: “You were made an offer.  You were made an offer?” and said: “Correct, I was.” He was then asked: “And you rejected it because, your earlier evidence was, that you wanted the redundancy; that’s correct?” and said “Yes.  Yes” 10

[59] In cross-examination by Mr Myers, Mr Thorn said that the Fleet Controller position at Greystanes was already filled at the time he was offered that job.

[60] Re-examination by Mr Warnes and further cross-examination by Mr Baroni did not yield anything of significance to my consideration.

J Becvarovski

[61] Mr Becvarovski gave sworn evidence and adopted a witness statement 11. Mr Becvarovski is a member of the TWU and was employed by Cameron at Orora’s Revesby site from late 2004 as a truck driver, and later as a Fleet Controller, driving semi-trailers. His Fleet Controller duties were performed during the last year of his employment. He has a Heavy Combination license. His work involved deliveries and pick ups from a site in Smithfield and a Central Coast run servicing the Sara Lee factory at Lisarow and other Cameron clients.

[62] In October 2014 he was informed of the ending of the Contract and that redundant employees would be offered similar positions to those they held during the Orora contract. He therefore expected to be offered a Fleet Controller position. He was later offered a driver position on Cameron’s Woolworths contract but did not apply for it as he believed he would be offered a Fleet Controller position at a later stage. On 21 November 2014 he refused to sign a letter acknowledging that he had been offered a position as a truck driver. He was later informed that he was not listed on Cameron’s ‘books’ as a Fleet Controller but as a truck driver. This contradicted a Cameron’s Emergency Contact List 12 where he is listed as a Fleet Controller.

[63] On 28 November 2014 he had a further discussion with Mr Yeo and signed the letter referred to above “saying that I had not accepted the offer of a job as a Truck Driver, because I thought this was the only way I would be paid any entitlements.”

[64] “About a week later, Mr Yeo phoned me and advised that Camerons had about six more positions on the Woolworths contract. These included Truck Driver positions with a starting time of 8am and an uncertain location of work. They could not tell if I would be based at Yennora or Minchinbury.”

[65] His employment with Cameron ended on 26 December 2014 and he was provided with a Separation Certificate 13 stating that his employment had ended due to redundancy. In January 2015 he was advised by Cameron that an application pursuant to s.120 of the Act would be made.

[66] Mr Becvarovski went on to say that in November 2014 he applied for a truck driving position with DGL and was successful. He commenced work with DGL on 2 January 2015 and is now working as a night shift supervisor, a similar role to his previous position with Cameron.

[67] In cross-examination by Mr Baroni, Mr Becvarovski agreed that he could have performed the job as a truck driver on the Woolworths contract. He agreed that he applied for a position with DGL before signing an acknowledgement of Cameron having offered him an alternative position which he refused. He agreed that he was paid all of his statutory entitlements on termination.

[68] Re-examination by Mr Warnes did not give rise to anything pertinent to my consideration.

K Holmes

[69] Mr Holmes gave sworn evidence and adopted a witness statement 14. He is a member of the TWU and was a delegate at the time his employment was terminated. He worked for Cameron for some eight years as a truck driver operating out of Orora’s Revesby site. He initially drove rigid vehicles but during the latter part of his employment he exclusively drove semi-trailers. He has a Heavy Combination Licence.

[70] Around August 2014, Mr Holmes was involved in a vehicle accident at the Revesby site and received a warning letter which left him feeling “very insecure in my employment”.

[71] When he and other drivers were advised that the Contract had been lost, they were told that there were two semi-trailer positions at an unspecified Woolworths site, one semi-trailer position at Greystanes and a number of positions driving rigid vehicles. On 7 November 2014 he attended another meeting together with all Cameron employees at Revesby where a further list of available positions was presented by Mr Yeo. On 21 November 2014 he met with Mr Yeo and Mr J Taylor at Greystanes and was offered a position with Woolworths at Yennora as a semi-trailer driver. He was asked to respond to the offer by 28 November but did not do so as he went on holidays, returning on or about 7 December, and therefore did not have an opportunity to respond by 28 November.

[72] “On around 8 December 2014, I was called to a further meeting at Greystanes with Mr Yeo and Mr Taylor. During that meeting I was asked to sign the letter given to me at the first meeting stating whether I selected to take the job offered as a driver at Woolworths or not. I was put under considerable pressure at this meeting, and was told by Mark that; ‘we need a signature either way today’. I signed the letter, but indicated that it was under duress because of the considerable pressure I felt.”

[73] He later accepted a position with DGL doing substantially the same work that he formerly did for Cameron. He commenced with DGL on 1 January 2015, having finished work for Cameron on or about 23 December 2014.

[74] Mr Holmes went on to say that during the redundancy process he “never had faith that the jobs that were being put on the table by Camerons actually existed”. This was due to another employee’s experience after applying for several positions, his belief that the number of redundant employees who were being offered jobs was far greater than the number of those positions which were said to be available and “there was a high degree of vagueness about available positions with Camerons”.

[75] Mr Holmes went on to reply to part of the evidence of Mr Yeo and Mr Rohan. In relation to Mr Yeo’s evidence, Mr Holmes said: “I do not believe that any of the roles offered to me where suitable given the fact that I was on a final warning and more employment with Cameron was less than secure. A new job with DGL was a far better option as I would get a clean slate.”

[76] In relation to the evidence of Mr Rohan, the response offered by Mr Holmes does not appear relevant to my consideration in this matter.

[77] In cross-examination by Mr Baroni, Mr Holmes agreed that the alternative position as a truck driver on the Woolworths contract was basically the same work he performed for Orora. He agreed that the position at Woolworths would have resulted in a pay increase but he did not believe the offered job genuinely existed. He was suspicious that he “was being set up because I was on a final warning.” 15 Mr Holmes conceded that his aim was to receive a redundancy payment.

[78] Nothing of significance arose in re-examination.

G Wills

[79] Mr Wills gave sworn evidence and adopted a witness statement 16. He is a member of the TWU and was first employed by the Company in late 2004. At the time he was made redundant, Mr Wills was working as a truck driver.

[80] Mr Wills went on to say that he was offered alternative employment by Mr Yeo but “I did not apply for any of these positions. I had hoped to put my hand up for a redundancy.”

[81] Mr Wills said that there were approximately six positions on offer for the 19 employees who were to be made redundant. On or about 21 November 2014 he was handed a letter by Mr Yeo (signed by Mr Rohan) indicating that he had been offered an alternative position driving a prime mover at Yennora or Minchinbury. “The position was for a job that started at 8am. In my position before I was made redundant, I regularly started a 5am in Smithfield. The different starting and finishing times and location did not suit me and would have added extra strain to my personal life.”

[82] Mr Wills finished his employment with Cameron on or about 19 December 2014 and then took annual leave for the rest of the contract leading up to his redundancy. He subsequently did casual employment with another transport company and is now working casually on the Orora contract through a labour hire agency.

[83] In cross-examination by Mr Baroni, Mr Wills said that he was not a TWU delegate at Cameron but was a ‘driver’s representative’. He went on to agree that all drivers being displaced at Orora were offered alternative driving jobs by Cameron similar to those held at Orora. He did not like the fact that the alternative position offered to him provided for a start time of 8 am rather than his start time of 5 am at Orora. He agreed that the offered alternative position was similar to his earlier job at Orora but carried a higher rate of pay.

[84] Mr Wills went on to say that he believed he was entitled to a redundancy payment due to the end of the Contract. He believed that the alternative job offered from Cameron was confusing but agreed that he did not ask Mr Yeo or Mr Rohan whether the offered alternative job was genuine.

[85] Mr Wills was not re-examined.

D Kearney

[86] Mr Kearney gave sworn evidence and adopted a witness statement 17. He is a member of the TWU and started work for Cameron around May 2005 as a truck driver. From December 2013 onwards he was on light duties following an injury for which he was receiving workers compensation payments.

[87] In mid December 2014, Mr Rohan advised him that alternative work was available but he couldn’t accept the role due to his light duties requirement. He later refused work doing inventory/cleaning duties as it was work he did not wish to perform. When made redundant in late December 2014 he was paid his statutory entitlements and received a letter from Cameron informing him that the Company would be making a s.120 application to the Commission.

[88] “I spent months looking for work, and then in March 2015 I found work as a Driver with another organisation. Prior to that, I had been living off my long service and holiday payout.”

[89] In cross-examination by Mr Baroni, Mr Kearney said that he was offered an alternative position driving a ute from the Greystanes site, at the same rate of pay he received at Orora. He refused that position because it was not the same as driving a truck. He was asked: “So the only real difference, then, in relation to the work you were doing and the new work - or the new offer - was simply the size of the vehicle?” and said: “Yes.” 18

[90] Mr Kearney went on to say that he could not accept the alternative job due to his light duties requirement. He was unwilling to do cleaning and inventory work.

[91] In re-examination by Mr Warnes, Mr Kearney was asked: “Was it at any time made clear to you that the truck driving job or the ute job would still be available once you got off light duties?” and said “No.” 19

W Lawrence

[92] Mr Lawrence gave sworn evidence and adopted a witness statement 20. He is a member of the TWU and was first employed by the Company around July 2005. He initially worked at the Revesby site and later at Smithfield. For the last two years of his employment he worked at Kennard’s Storage. Mr Lawrence was employed as a truck driver.

[93] Around November 2014 he met with Mr Yeo and Mr Taylor and was offered a position as a courier driver. “This involved driving a ute and doing multiple drops per day. This is significantly different to the driving role I was undertaking. I informed them I would think about it and get back to them. I later informed Mr Yeo that I would not be accepting the courier position.”

[94] His employment with the Company ended on 31 December 2014. Subsequently, he applied for a driving position with DGL, was successful and commenced employment with DGL on 2 January 2015. That employment continues.

[95] In cross-examination by Mr Baroni, Mr Lawrence agreed that the alternative position offered to him did not involve any reduction in wages and agreed “that the only difference you saw was that it was a smaller truck.” 21 He went on to further agree that driving a ute was within his skill set but rejected the offer as he did not want to drive one. Mr Lawrence said that he did not reject the alternative position with the aim of receiving a redundancy payment.

[96] In cross-examination by Mr Carpenter, Mr Lawrence said that there was more manual handling in the role of a utility driver.

[97] Mr Lawrence was not re-examined.

P Davis

[98] Mr Davis gave sworn evidence and adopted a witness statement 22. He is a member of the TWU and commenced employment with Cameron around February 2013. He was previously employed at the Company through a labour hire firm. He was employed as a semi-trailer truck driver at the Orora Revesby site.

[99] He recalled being offered several alternative positions on other Cameron contracts but none of those positions were based in Revesby. In December 2014 Mr Yeo and Mr Taylor informed him that positions were available at Yennora and Minchinbury but neither location suited him. His employment with Cameron ended in late December 2014.

[100] Around November 2014 DGL approached him and he commenced work on 2 January 2015 on a six month trial period performing similar work to his duties with Cameron. Cameron did not facilitate his employment with DGL.

[101] In cross-examination by Mr Baroni, Mr Davis agreed that the alternative position offered to him was the same type of work which he performed at Orora and that he would have received a pay increase if he took the alternative position.

[102] Mr Davis was not re-examined.

G French

[103] Mr French gave sworn evidence and adopted a witness statement 23. He is a member of the TWU and was employed by Cameron driving semi-trailers from about 2005. He worked out of Orora’s Smithfield and Revesby sites.

[104] Around September or October 2014 he attended a tool box meeting at Revesby concerning the loss of the Contract and was handed a ‘piece of paper’ listing two available jobs at Woolworths and three jobs at Greystanes as alternative positions. About a month later, the Company advised employees of another three or four jobs at the Woolworths site. Mr French did not apply for any of the positions offered.

[105] On 28 November 2014 he signed a letter acknowledging that he would not be accepting an offered alternative position. “I believed that I would receive my redundancy payment as a result of declining the offer as the letter stated ‘I acknowledge that my employment will end as a result of redundancy effective 26 December 2014.’”

[106] In December 2014 he met with Mr Yeo and “mentioned perhaps changing my mind and accepting a position …I did not receive a response.”

[107] His employment with Cameron ended on 26 December 2014 and he received a separation certificate stating that his employment had ended due to redundancy. 24

[108] Mr French has not gained other employment since ending at Cameron despite actively searching.

[109] In cross-examination by Mr Baroni, Mr French said that he rejected the offer of an alternative position at Woolworths because he was unsure how long the new job would last for and he thought that he would receive a redundancy payment as a matter of course.

[110] Mr French was not re-examined.

A Carpenter

[111] Mr Carpenter gave sworn evidence and adopted a witness statement 25. Mr Carpenter was employed by Cameron at Orora for almost five years as an Inventory Controller.

[112] Mr Carpenter went on to say that he was informed by Mr Rohan and Mr Yeo, together with other affected employees, on 10 October 2014 about the loss of the Contract and he met with Mr Yeo and Mr J Taylor on 3 December 2014 when he was offered employment with Cameron at Greystanes as a Stock Controller. He did not accept the offer. Mr Carpenter said that the Company “has not restructured or increased their workload to justify a new pallet/stock controller position.” There have been no subsequent advertisements for a new pallet/stock controller position following his rejection of the offer and the position is not shown in Cameron’s current organisational structure.

[113] In cross-examination, by Mr Baroni, Mr Carpenter was asked: “No as I understand it from your evidence you rejected the job that was offered to you simply because you thought somebody else was doing the job?” and said: “Yes, that was my primary rejection. I needed job security and there was none there for me.” 26

[114] Mr Carpenter went on to say that he did not believe that the alternative position existed: “There was just a false offer …” 27 He agreed that he did not probe that issue with Mr Yeo.

[115] In cross-examination by Mr Warnes, Mr Carpenter again stated that he did not believe that the alternative position offered to him actually existed.

[116] In further cross-examination by Mr Baroni, Mr Carpenter again rejected the proposition that he was only interested in a redundancy payment.

L Myers

[117] Mr Myers gave sworn evidence and adopted a witness statement 28. Mr Myers said that he was employed by the Company for some twelve years, the last ten of which were at the Orora Revesby site. He was a Fleet Controller.

[118] In relation to his redundancy from the Orora site, Mr Myers said: “I had a meeting with Mark Yeo and Jason Taylor and they offered me employment at Glen Camerons Greystanes. I then asked what the role was Mark told me that the role was the Fleet Controller at Greystanes I then asked what the Fleet Controller at Greystances will be doing he replied Fleet Controlling then what will be doing he replied more than likely nothing I then ask if this job will be offered to Darren Thorn as well he replied yes I then said that will mean there will be three Fleet Controllers at Greystanes but there is only one job his reply was don’t shoot the messenger.”

[119] In cross-examination by Mr Baroni, Mr Myers said that he did not believe that there was a genuine Fleet Controller position for him at Greystanes. He went on to say that he is currently employed at Orora as a Fleet Controller but at a lower rate of pay than the alternative position offered by Cameron.

[120] Mr Myers denied that his primary aim had been to gain a redundancy payment. He said his major reason for rejecting the alternative position was that it would not have any job security. Mr Myers was then asked: “I put to you that that's not correct.  There was a legitimate job there.  You had no idea whether the - about your thoughts.  They were just your thoughts, nobody else's.  The job was a legitimate offer.  You chose not to take it.  They're the facts?” and said: “I can't argue the facts, no.” 29

[121] In cross-examination by Mr Warnes, Mr Myers was asked in relation to the alternative job offer: “Mr Myers, you said in response to one of Mr Baroni's questions that there were going to be three people in the same job.  What did you mean by that?” and said: “The current allocator that's at Greystanes now which is Steve Coogan, the job was also said that it was offered to myself and it was also going to be offered to Darren Thorn.  So it's three guys in the same job.” 30

P Voroshine

[122] Mr Voroshine gave sworn evidence and adopted a witness statement 31. Mr Voroshine said that he was employed by the Company for some ten years as a full time driver based at Orora’s Revesby site, working the early morning shift. The Revesby site is approximately 15 minutes from his home.

[123] On 10 October 2014 he was notified that the Contract would expire on 31 December 2014. He was advised on 21 November 2014 that the loss of the Contract meant that his position would become redundant at the end of December. On 3 December he met with Mr Yeo and was offered the position of a HC Truck Driver working as a relief driver at any of three sites: Greystanes, Yennora and Minchinbury NSW.

[124] “This was not suitable employment for me. The locations were much further from my home and with a much later start time, the hours of extra travel to and from work would be greatly increased, as I would now be travelled during peak times. Working from Revesby and starting early, often ensured I would finish earlier so I could care for my elderly father who is 94 years of age. He lives in East Hills, which was on my way home from work. It was vital that I could work so close to home and with those hours to care for him, as there was no one else I could rely on. Therefore, I declined the offer. It was not a justified role. It was a general role offered to all drivers. This has been an unfair attempt to pass off a redundancy package by offering last minute employment that is unsuitable.”

[125] In cross-examination by Mr Baroni, Mr Voroshine said that the only reason he did not take the alternative position at Yennora was that it was too far from his home. Mr Voroshine had earlier agreed that Yennora was some 20 to 25 minutes driving distance from Revesby. Mr Voroshine denied that he refused the alternative position with the aim of gaining a redundancy payment.

Written submissions

[126] In accordance with directions, outlines of submissions were filed by Cameron 32, the TWU33, Mr Carpenter and Mr Myers. Cameron and the TWU also handed up final written submissions on the last day of hearing34. I have paid regard to the outlines of submissions filed prior to the hearing, including any case law cited therein by Cameron and the TWU. I will now deal with the final written submissions in more detail together with a brief summary of the outlines of submissions by Mr Carpenter and Mr Myers.

Cameron

[127] Cameron argued that the evidence of Mr Rohan and Mr Yeo “was cogent, articulate and should be preferred over the evidence of any of the Respondents’ witnesses and that the evidence of both witnesses remained intact and unchallenged overall.”

[128] Cameron’s submissions characterised the reasons given by former employees in evidence as to their reasons for rejecting the offered alternative positions as falling into three categories:

“(a) they did not believe the roles actually existed;
(b) some of the Respondents wanted to receive the redundancy payout; and
(c) others did not ‘like’ the job offered as it was not in their preferred location close to their place of residence.”

[129] The submissions go on at length to examine the evidence of each of the Respondents and I have paid further regard to that material.

[130] “The Applicant submits that based on the evidence of the Applicant and the Respondents, the offers made to the employees were in fact acceptable employment …” Cameron further argued that the case law concerning redundancy entitlements does not support the Respondents’ contentions in relation to offers of acceptable alternative employment.

The TWU

[131] The TWU argued that: “The thrust of the TWU’s opposition to the application is that the jobs that were ‘offered’ to the redundant employees did not exist. The Commission should be satisfied of the two following points on the evidence before it: i. The Company did not have enough jobs available to offer its redundant employees. ii. The Company knew that DGL was seeking to employ the redundant employees.”

[132] The TWU went on to examine the meaning of ‘obtains’: “If the job does not exist when it is offered, then it has not been ‘obtained’ by the employer. Simply offering the possibility of a job which, if the employee accepts, the employer would then seek to create is not enough to reach the threshold of ‘obtain’. The job has not been obtained, it has been proposed.”

[133] The submissions went on to argue that the redundant employees possessed sufficient knowledge of the Company’s operations to ascertain there was a need for additional employees in a particular part of the Company’s business. The submissions go on in detail to examine the positions offered to individual employees and I have paid regard to that material. In summary, it was argued that there were only some 19 positions available when 26 were required. The TWU argued that the replacement of contractors with those made redundant as a result of the termination of the Contract could not constitute the ‘obtaining’ of employment for the redundant employees and therefore could not support an application to reduce redundancy payments.

[134] The TWU went on to say that Cameron, when faced with the likelihood that DGL would offer employment to the redundant employees, “made a series of insincere offers of employment which it had not yet obtained or created.”

[135] “The application made by the Company ought to be dismissed as the Company has failed to satisfy s 120 in that it has not ‘obtained’ acceptable alternative employment. In the alternative, the Commission ought to exercise its discretion and refuse to grant a variation in the redundancy pay due to employees due to the scant details available to employees when offered a position. In the alternative, the Commission should exercise its discretion and only reduce redundancy payable to redundant employees so far as is necessary in each individual circumstance.”

Mr Myers

[136] Mr Myers argued that the offer to him of a Fleet Controller position at Greystanes “is not a justified offer to fill a required position as in the last 10 years at Cameron’s Villawood, Smithfield & Greystanes there has only ever been one Fleet Controller. If there was a need for a Fleet Controller position at the Glen Cameron’s Greystanes site, then it is reasonable that the Applicant would have advertised for the position. The Applicant has not advertised internally or externally for the new Fleet Controller position as of yet. … In addition, there has been no restructuring or increased workload to justify an additional position of Fleet Controller at … Greystanes.”

Mr Carpenter

[137] Mr Carpenter argued that the offer to him of a new position of pallet/stock controller at Greystanes was not an offer of suitable alternative employment in his case. His argument in this regard was similar to that of Mr Myers.

[138] Mr Carpenter went on to detail the differences he saw between his old position on the Orora contract and the alternative position offered to him.

Oral submissions

[139] Cameron and the TWU made supporting oral submissions on the final day of the hearings. I have paid regard to that material particularly as it relates to the meaning of ‘obtains’ in s.120(1)(b)(i) of the Act.

Conclusions and Findings

[140] Section 119 of the Act relevantly provides:

“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; …”

[141] Section 119 goes on to set out the quantum of redundancy pay for various periods of service.

[142] Section 120 of the Act further 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; or

(ii) cannot pay the amount.

(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.”

[143] In the case before me, Cameron claims that it should not be required to make any redundancy payment to the named Respondents due to the operation of s.120(1)(b)(i). The TWU and the Respondents maintain that the affected former employees are entitled to the benefits provided in s.119 of the Act as the alternative employment offered by Cameron to them was variously unsuitable or, in reality, non-existent.

[144] In reaching my ultimate conclusions and findings, I have paid regard to all of the evidence, submissions and materials before me. Where a Respondent has not appeared during proceedings or filed any documentation, I have assessed the situation of that Respondent based on the materials available to me.

[145] It is commonly accepted that the Full Bench of the Australia Industrial Relations Commission in Derole Nominees Pty Ltd and Australian Chamber of Manufactures 35 (Derole) set the foundations for an understanding of what constitutes ‘acceptable alternative employment’. The Bench said:

“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 like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.” 36

[146] Successor tribunals to the AIRC, including this Commission, have not fundamentally varied the approach taken in Derole. In making my final decision, I am also guided by Derole.

[147] In these proceedings: “The TWU submits that “in order for an employer to ‘obtain other acceptable employment for the employee’ the employment must: a. exist; and b. be required by the employer. On the evidence before the Commission, the TWU submits that it could not be satisfied that the positions which were offered to the redundant employees existed, and if they did, then they were not required to be performed by Camerons.”

[148] In Health Services Union v Goulburn Valley Health 37, Commissioner Gooley (as she then was) said:

“In Tontine Fibres 38a Full Bench of the Australian Industrial Relations Commission had to determine whether employees who were redeployed to another site owned by their employer were redundant and if so whether they should receive redundancy pay. Having decided that the employees’ positions were redundant the Full Bench adopted the approach articulated in Derole Nominees Pty Ltd [references omitted] and had regard to the rates of pay, the distance the employees would be required to travel and the impact of that on family responsibilities. It further indicated that the medical issues raised by some employees ‘cannot be overlooked.’39

In Derole the Full Bench made it clear that the test to be applied when determining if the employer had obtained suitable alternative employment was an objective test.”

[149] In FBIS International Protective Servics (Aust) Pty Ltd v Maritime Union of Asutralia 40, a Full Court of the Federal Court of Australia examined the meaning of ‘obtains’:

“With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to ‘effort’, and to ‘purpose and effort’ in this meaning as implying the existence of some kind, much less a strong kind, of ‘moving force’ in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the ‘general’ connotation of the word – ‘to acquire, get’ – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.” 41

[150] In the case before me, Cameron, through the evidence of Mr Rohan in cross-examination, said that it did not attempt to place redundant employees with DGL because it wished to retain them at Cameron. Mr Rohan gave the same evidence, specifically relating to Mr Myers. Several of them later gained positions with DGL through their own efforts.

[151] I have carefully examined everything before me in relation to each individual Respondent and have concluded that each was individually offered a suitable alternative position by Cameron but chose (with the exception of Mr Markov and Mr Smith) not to take it up for varying reasons, none of which constituted a reasonable refusal. It appears to have been a common belief amongst the redundant employees that a refusal to take up alternative employment with Cameron would trigger a redundancy payment to them. It is clear from the evidence that none of the former employees who gave evidence ever seriously considered taking up an alternative position. That, of course, was within their right but it does not have the effect of entitling them to redundancy pay.

[152] I have also concluded and find that the fact that not every alternative role was in existence at the time it was offered to a redundant employee does not act to de-legitimise the offer. The willingness to create new positions to accommodate otherwise redundant employees certainly does not mean the created roles were not obtained by the Company. Each offered alternative role was within the basic skill set of each relevant employee, or could be attained. 42 There was to be no reduction in pay for any employee and, indeed, some were to receive a pay rise. Additionally, the locations of new roles did not involve excessive additions to employees’ travel times. Some employees raised the issue of new start and/or finish times as being why they could not accept an alternative position. This is understandable, but does not trigger redundancy payments. The Agreement itself does not guarantee that start and finish times will not be varied during an employee’s employment.43

[153] Here, I must mention that I find it curious that Cameron did not seek to rely on clause 29 (Alteration to Workplace location) of the Agreement rather than make this application. That clause provides:

“The Company may require an employee to transfer between employment locations as part of their employment with the Company. The Company shall give as much notice as possible to the employee of the requirement to change work locations.

Where the change in work location is in excess of 30kms of the distance that the employee currently travels to work, the Company shall pay the employee a travel allowance of 20 cents per km for each km travelled in excess of 30 kms for a period of eight weeks.”

[154] Mr Yeo’s evidence (see paragraph 46 above) sought to explain that decision. However, it remains a source of puzzlement to me, as the Respondents’ evidence was that most of them had moved between sites serviced by Cameron in the past. However, it is not in question that Cameron had the right to bring its application pursuant to s.120 of the Act.

[155] All in all, I find that Cameron obtained acceptable alternative employment for each of the Respondents. The refusal by the Respondents (not including Mr Markov and Mr Smith) to take up the offers of acceptable/suitable alternative employment did not trigger an obligation on Cameron pursuant to s.119 of the Act. The acceptance of offers of suitable alternative employment by Mr Markov and Mr Smith relieved Cameron of its obligations under s.119 of the Act. Accordingly, Cameron’s application made pursuant to s.120 of the Act is granted and the Company therefore has no obligation to make redundancy payments to any of the Respondents to this application.

COMMISSIONER

Appearances:

M Baroni for Glen Cameron Nominees Pty Ltd.

T Warnes for the respondent employees.

Hearing details:

2015.

Sydney:

11, 21, 22 May;

11 June;

3 July.

 1   Exhibit Cameron 2.

 2   Attachment A to Exhibit Cameron 2.

 3   See attachment to Exhibit Cameron 2.

 4   Exhibit Cameron 3.

 5   Exhibit Cameron 5.

 6   Exhibit Cameron 6.

 7   Transcript PN2233.

 8   Transcript PN2327.

 9   Exhibit TWU 2.

 10   Transcript PNs665-666.

 11   Exhibit TWU 3.

 12   Attachment JB-3 to Exhibit TWU 3.

 13   Attachment JB-4 to Exhibit TWU 3.

 14   Exhibit TWU 4.

 15   Transcript PN973.

 16   Exhibit TWU 5.

 17   Exhibit TWU 6.

 18   Transcript PN1399.

 19   Transcript PN1434.

 20   Exhibit TWU 7.

 21   Transcript PN1473.

 22   Exhibit TWU 8.

 23   Exhibit TWU 9.

 24   See Attachment GF-2 to Exhibit TWU 9.

 25   Exhibit Carpenter 1.

 26   Transcript PN1670.

 27   Transcript PN1708.

 28   Exhibit Myers 1.

 29   Transcript PN1994.

 30   Transcript PN1997.

 31   Exhibit V 1.

 32   Exhibits Cameron 1.

 33   TWU 1.

 34   Exhibits Cameron 8 and TWU 11 respectively.

 35 140 IR 123.

 36   Ibid at 128.

 37   [2012] FWA 7488.

 38   NUW v Tontine Fibres [2007] AIRC FB 1016.

 39 Ibid at [30].

 40 [2015] FCAFC 90.

 41   Ibid at paragraph 20.

 42   See clause 16 of the Agreement in this regard.

 43   See clause 19 of the Agreement in this regard.

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