Gold Coast Airport Pty Limited
[2024] FWC 3145
•19 DECEMBER 2024
| [2024] FWC 3145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Gold Coast Airport Pty Limited
(C2024/7868)
| DEPUTY PRESIDENT LAKE | BRISBANE, 19 DECEMBER 2024 |
Variation of redundancy pay - alternative employment offered – no objection from affected employees – alternative employment acceptable – redundancies varied.
On 6 November 2024, Gold Coast Airport Pty Limited (the Applicant) applied to the Fair Work Commission (the Commission) under s.120(2) of the Fair Work Act 2009 (the Act) to vary the redundancy entitlements of six affected employees.
The Applicant sought that the redundancy entitlements for four of the affected employees be reduced to nil:
Mr Ashleigh Moore
Mr Darren Gilmour
Mr Jason Vandenberg
Mr Jeffrey Leahy
For the other two affected employees, the Applicant sought to reduce the employee’s redundancy entitlements to 8% of their statutory redundancy entitlement:
Mr Mark Knowles
Mr Pete Pulefale[1]
All of the affected employees, except Mr Darren Gilmour, worked in the role of Terminal Systems and Maintenance Officer. Mr Gilmour was a Terminal Systems Training and Maintenance Officer. All of the affected employees were offered roles with Daifuku. The Applicant had, for over 10 years, been outsourcing maintenance of its bag handling system to Daifuku. In 2024, the Applicant investigated whether the Applicant’s bag handling operations could be combined with Daifuku’s bag handling maintenance and aerobridges maintenance.[2] It was decided that this would occur and bag handling operations and maintenance and aerobridges maintenance would be outsourced to Daifuku.[3]
The Applicant obtained an undertaking from Daifuku that they would offer as many redeployment offers as possible to affected employees. The six affected employees who are the subject of this decision were offered roles with Daifuku, located at Gold Coast Airport, with substantially similar terms and conditions and recognition of service.
On 12 November 2024, my Chambers issued Directions to the parties. The Applicant was directed to file their submissions by close of business Tuesday, 19 November 2024. The Directions indicated that should the affected employees wish to contest the variation to the redundancy entitlements, the affected employees were directed to provide their submissions by close of business, Tuesday, 26 November 2024.
No submissions or correspondence were received from any of the affected employees on Tuesday, 26 November 2024.
On 27 November 2024, my Chambers emailed the affected employees to remind them that submissions had been due on 26 November 2024 and any extension requests needed to be on substantive grounds. The affected employees were specifically advised that failure to contest the redundancy may result in their entitlements being reduced to nil.
To date, no submissions have been received from the affected employees contesting the variation to redundancy entitlements.
Should the affected employees’ redundancy be varied?
I am satisfied that the Applicant no longer requires the Terminal Systems and Maintenance Officer and Terminal Systems Training and Maintenance Officer roles to be performed by anyone, and therefore the affected employees are entitled to a redundancy payment under s.119(1)(a) of the Act. Therefore, I must consider whether the Applicant has obtained acceptable employment for the affected employees under s.120(1)(b)(i) of the Act.
Section 120 of the Act states as follows:
“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.”
Past Fair Work Commission decisions explain ‘other acceptable employment’ as the following:
This is assessed objectively. Other acceptable employment does not mean that the role must be acceptable to the employee. An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively acceptable.[4]
Acceptable employment is not identical employment, as no two jobs could be exactly the same. Alternative employment can be acceptable even there may be some inconvenience or some detrimental alteration to the terms and conditions of employment.[5] It is a matter of degree.
An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.[6] Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[7]
Identifiable comparisons of the redundant role and the alternate role can be considered in determining whether reasonable alternative employment has been offered with considerations including (but not limited to depending on what the Commission deems as appropriate):
a)nature of the work;
b)pay rates;
c)working hours;
d)skills;
e)duties;
f)seniority;
g)fringe benefits
h)workload and speed;
i)job security;
j)travelling time;
k)capacity to perform job;
l)location of work (which would now incorporate a requirement to work from home or in the office);[8]
m)loss of flexibility (such as caring responsibilities).[9]
I am satisfied that the Applicant was the “strong moving force in the creation of the available opportunity” for each of the employees.[10] The Applicant sought an undertaking from Daifuku for Daifuku to offer as many redeployment opportunities as possible to the affected employees.
The six affected employees were issued employment contracts from Daifuku on 14 October 2024.
The Applicant provided a position description for the roles of Terminal Systems and Maintenance Officer with the Applicant, which had been the role of all the affected employees except Mr Gilmour, and the Trade Assistant with Daifuku.[11] Having compared the position descriptions provided by the Applicant, I am satisfied that the nature of the work and the duties are largely similar. There is an added component in the Trade Assistant roles which appears to require skills in aerobridge maintenance. However, I have received no submissions to indicate that this is unacceptable.
I have also reviewed the position description for Terminal Systems Trainer and Maintenance Officer, which was Mr Gilmour’s position with the Applicant.[12] The Training component in is not a part of Mr Gilmour’s new role with Daifuku. However, I am satisfied that the other duties are largely similar.
Each of the employees were offered positions with the same base rate and in the same location.[13] The Applicant has indicated that accrued personal leave and long service leave entitlements will be transferred to Daifuku. The working hours for each of the positions are comparable. For Mr Knowles and Mr Pulefale, their hours before the redeployment were 50 hours a fortnight minimum. In their new role with Daifuku, Mr Knowles and Mr Pulefale will be contracted for an average of 23 hours a week, with no minimum. To reflect the potential loss of 4 hours per fortnight, which represents an 8% decrease in fortnightly working hours, the Applicant has requested that the redundancy entitlements for Mr Knowles and Mr Pulefale be reduced to 8% of their statutory redundancy entitlement.[14] This appears to be an acceptable reduction, reflecting the potential loss of hours.
Conclusion
I am satisfied that that the redeployment roles are acceptable alternative employment. I am satisfied that the Applicant was a strong moving force in the creation of the alternative employment opportunities with Daifuku. I am satisfied that varying Mr Knowles’ and Mr Pulefale’s redundancy entitlements to 8% of their entitlements reflects their potential loss of hours in the new role.
The redundancy pay for the following affected employees is varied to nil:
Mr Ashleigh Moore
Mr Darren Gilmour
Mr Jason Vandenberg
Mr Jeffrey Leahy
The redundancy pay for Mr Mark Knowles is varied to 0.64 weeks, which is equivalent to 8% of 8 weeks’ redundancy.
The redundancy pay for Mr Pete Pulefale is varied to 0.56 weeks, which is equivalent to 8% of 7 weeks’ redundancy.
I Order accordingly.
DEPUTY PRESIDENT
[1] Form F45A, page 15-19.
[2] Applicant Submissions
[3] Applicant Submissions.
[4] NUW v Tontine Fibres [2007] AIRCFB 1016 at [23],
[5] Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia[2006] AIRC 737 at [89] (Watson SDP).
[6] Application by Spotless Services Australia Limited (‘Spotless’) [2013] FWC 4484 at 14.
[7] Ibid.
[8] UXC Connect v Moore [2012] FWA 4296.
[9] Heath Family Trust T/A Focus People Pty Ltd [2021] FWC 2779 at [21] (Lee C).
[10] Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd (2014) 245 IR 287; [2014] FWCFB
6737.
[11] Applicant Submissions; Attachment 6; Attachment 8.
[12] Applicant Submissions; Attachment 7; Attachment 8.
[13] Applicant Submissions; Attachment A
[14] Form F45A, 15-19
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