[2017] FWC 4273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grant Skinner, Mark Pemberton, Joshua Ross, Ian Raymond Lucas, Kadin Hill, Abigail Bryant, Mareck Preston
v
Asciano Services Pty Ltd T/A Pacific National Bulk
(U2015/9788), (U2015/11732), (U2015/9790), (U2015/9795), (U2015/9798), (U2015/9802), (U2015/9805)

COMMISSIONER JOHNS

SYDNEY, 18 AUGUST 2017

Application for relief from unfair dismissal – whether case of genuine redundancy.

[1] This decision concerns seven applications made under s.394 of the Fair Work Act 2009 (Cth) (FW Act). Asciano Services Pty Ltd (Asciano/Employer/Respondent), is the respondent to the applications filed by:

Applicant	Date dismissal took effect	Position 1	Salary	Remedy sought 2
Grant Skinner	17 July 2015	Trainee Driver	$69,028.79	Re-instatement
Mark Pemberton	28 August 2015	Trainee Driver	$62,977.79	Compensation
Joshua Ross	17 July 2015	Mainline Driver in Training	$69,028.79	Re-instatement
Ian Raymond Lucas	10 July 2015	Locomotive Driver	$74,499.53	Compensation
Kadin Hill	17 July 2015	Mainline Driver in Training	$69,028.79	Re-instatement
Abigail Bryant	17 July 2015	Mainline Driver in Training	$69,028.79	Re-instatement
Mareck Preston	10 July 2015	Locomotive Driver	$71,767.40	Compensation

[2] This decision only concerns whether any of the dismissals were harsh, unjust or unreasonable. If any of the dismissals are found to be unfair, they will be further programmed for hearing in relation to what remedy, if any, should be awarded.
[3] The applications have a long history:

(a) All of the applications (with the exception of Mr Pemberton’s application) were filed on 29 July 2015. Mr Pemberton’s application was filed on 9 September 2015.

(b) On 1 September 2015 the respondent filed a response to the applications denying that the termination of the applicants’ employment was unfair because, it said, the dismissals were genuine redundancies.

(c) The applications were heard together on 26, 27 and 30 November 2015. Thereafter, there followed a program for the filing of closing submissions (closing on 5 February 2016).

(d) On 4 May 2016 I handed down my decision. I dismissed all of the applications on the basis that I was satisfied that each matter involved a case of genuine redundancy (Genuine Redundancy Decision). 3

(e) The applicants appealed.

(f) On 25 January 2017 a Full Bench of the Commission decided to allow an appeal against the Genuine Redundancy Decision. The Full Bench was not satisfied that the dismissal of the applicants was a case of genuine redundancy (Full Bench Decision). 4 The gravamen of the Full Bench Decision was the failure of the respondent to consider voluntary redundancy (VR) swaps. The Full Bench held:

“[56] We agree with Senior Deputy President Hamberger that there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. An employer who does not implement such a process will not automatically be found to have failed to meet the requirement in s.389(2) of the FW Act for the redundancy to be considered to be genuine.

[57] The redeployment obligation is expressed in the context of “reasonable in all the circumstances”. Whether it would have been reasonable in all of the circumstances for an employer to allow employees whose positions are redundant to swap with other employees who wish to volunteer for redundancy, will depend on the facts in the particular case. In the present case:

● The respondent is a large business employing a significant number of employees who undertake the same role as those being made redundant;

● The number of employees performing the same or substantially the same role – train driving – means that allowing a swap would not place onerous training requirements on the respondent;

● In some cases there were potential swaps possibly available in depots reasonably proximate to the depots in which the appellants were working so that the respondent would not have been exposed to costs such as those associated with transferring employees;

● The respondent had previously allowed swaps in similar circumstances; and

● The respondent had suggested this as a possible option to mitigate the effects of redundancy in the round of redundancies which resulted in the dismissal of the appellants.

[58] In these circumstances the possibility of swaps should have been considered, and the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2). We are not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position is redundant, by allowing that person to swap with another employee who wished to accept redundancy. Contrary to the submission of the respondent, we do not think that making available the possibility of transfers to Enfield and Moss Vale was sufficient compliance with the obligations imposed by s.389(2) of the FW Act. We are therefore not satisfied that the dismissal of the appellants was a case of genuine redundancy.”

(a) Consequently, the Full Bench quashed the Genuine Redundancy Decision and remitted the matters to the Commission, as presently constituted, for rehearing. 5 On a rehearing of the matters the Commission must consider whether it is satisfied that the dismissal of each of the applicants was harsh, unjust or unreasonable.

(b) On 9 April 2017 the parties were provided with my preliminary views about which paragraphs in the Genuine Redundancy Decision were not disturbed by the Full Bench Decision. They were invited to respond to the same.

(d) Thereafter there was a program for the filing of further closing submissions.

(e) On 28 July 2017 the parties jointly filed a response to my preliminary views about which paragraphs in the Genuine Redundancy Decision were not disturbed by the Full Bench Decision.

[4] At the rehearing:

a) The applicants were represented by Mr Robert Reitano of Counsel.

b) The respondent was again represented by Mr Simon Meehan of Counsel.

[5] Permission was granted to both parties to be represented because the Commission, as presently constituted, was satisfied that the matters were invested with sufficient complexity such that the matters would proceed more efficiently if the parties were represented. 6

[6] In coming to this decision the parties agreed that I could have regard to evidence and witness statements from the following (from when the matters were first before me):

a) Mr Phillip Mullard (Exhibit R3);

b) Mr Robert King (Exhibit R4);

c) Mr Paul Hopwood (Exhibit R6 & R7);

d) Mr Perry Karavas (Exhibit R8);

e) Ms Catherine Sanjurjo (Exhibit R9);

f) Mr Steven Thomas Thornhill (Exhibit R10);

g) Mr Grant Skinner (Exhibit A8);

h) Mr Mark Andrew Pemberton (Exhibit A4);

i) Mr Mareck Preston (Exhibit A5);

j) Mr Ian Lucas (Exhibit A6);

k) Mr Joshua Ross (Exhibit A9);

l) Ms Abigail Bryant (Exhibit A10);

m) Mr Kadin Hill (Exhibit A11);

n) Mr Michael Deering (Exhibit A3); and

o) Mr Adam Smith (Exhibit A2).

[7] In coming to this decision the Commission, as presently constituted, has also had regard to the following:

a) Applicant’s Outline of Submissions (Exhibit A13);

b) Applicant’s Outline of Submissions in Reply (Exhibit A14);

c) Witness Statement of Mr Mark Andrew Pemberton dated 13 March 2017 (Exhibit A15);

d) Witness Statement of Mr Joshua Ross dated 13 March 2017 (Exhibit A16);

e) Witness Statement of Ms Abigail Bryant dated 13 March 2017 (Exhibit A17);

f) Witness Statement of Mr Kadin Hill dated 13 March 2017 (Exhibit A18);

g) Witness Statement of Mr Ian Lucas dated 13 March 2017 (Exhibit A19);

h) Witness Statement of Mr Mareck Preston dated 14 March 2017 (Exhibit A20);

i) Witness Statement of Mr Grant Skinner dated 13 March 2017 (Exhibit A21);

j) Possible Voluntary Redundancy VR Swaps as at 13 March 2017 (Exhibit A22);

k) RTBU New South Wales News Flash (Exhibit A23);

l) Bundle of documents produced by Kadin Hill under notice to produce (Exhibit A24);

m) Production Bundle provided by the respondent (Exhibit A25);

n) Letter dated 13 February 2013 (Exhibit R11);

o) Witness Statement of Robert King dated 4 April 2017 (Exhibit R12);

p) Witness Statement of Mr Benjamin John Arscott dated 4 April 2017 (Exhibit R13); and

q) Detailed Warning Letter to Mr Ross dated 31 July 2012 (Exhibit R14).

Background

[8] The parties have agreed that the following paragraphs from the Genuine Redundancy Decision can stand in this decision:

“[8] The following matters are either agreed upon or not otherwise contested by the parties:

a) The respondent is a ‘national system employer’ for the purposes of section 380 of the FW Act and is an Australian freight logistics company, operating in railway freight and shipping. 7

b) Each of the applicants was a ‘national systems employee’ for the purpose of section 380 of the FW Act.

c) The respondent was the employer of each of the applicants.

d) Each applicant had completed the minimum period of employment with the respondent. 8

e) The Enterprise Agreement ‘Pacific National Bulk Rail Enterprise Agreement 2013 (Bulk Rail EA)’ (Bulk Rail EA) applied to the applicants, for the purpose of s 382(b) (ii) of the FW Act.

f) The following points made in the respondent’s submissions (Exhibit R1) were accepted by Mr Pryor in transcript:

‘7. The Respondent was advised of a reduction of workload in the form of a ‘rake’ or train set comprising 2 locomotives and 40 wagons from 20 April 2015: see the Bundle at pages 004 and 036. See the Statement of Mullard, paragraph 10.

8. The Respondent was advised by its customers of the reduction in grain volumes for export for the 2014/15 harvest period due to end in June 2015 and that this reduced volume would continue: see the Bundle at pages 004, 09, 36 and 043. See the Statement of Mullard, paragraph 11.

9. The Respondent was advised by its customers that the profile of grain harvested for export, evident in harvests for the two years preceding the 2014/15 season, would continue. Specifically, grain would need to be shipped from Australia by the end of June each year so that it would be available for the export market prior to European grain hitting the market. As this profile continued into the future, this will lead to significantly reduced demand for the Respondent’s services from July to November each year: see the Bundle at pages 004, 36 and 043. See the Statement of Mullard, paragraphs 8, 12 and 13.

10. The reduction in workload and altered profile outlined above led to a reduction in the need for train crews, as well as a requirement for a greater focus on costs.

11. The Respondent initially decided that operationally it required fewer train crew employees operating from its Cootamundra (20) and Parkes (17) Depots. These were full time permanent roles. This decision impacted the Applicants Lucas, Preston and Pemberton who worked at the Cootamundra Depot. This decision also impacted the Applicants Skinner, Ross, Hill and Bryant who worked at the Parkes Depot. See pages 004, 09 and 037 of the Bundle. See the Statement of Mullard, paragraph 16.

12. On or about 18 June 2015, the required reductions in labour were reduced to 19 positions at Cootamundra and 15 at Parkes Depots. See page 119 of the Bundle. The reduction required at Cootamundra resulted from an employee retiring. See the Statement of Hopwood, paragraph 23. The changed reduction required at the Parkes Depot was explained in the Statement of Thornhill at paragraphs 23, 25, 27 and 32.

IBT

13. The Respondent had reduced work for coal at its IBT Depot which impacted (in turn) the work at that Depot. One customer, NRE Limited, ceased operations on 30 June 2014. Another customer, Centennial Coal, announced the closure of one its mines. Centennial Coal also transferred some of its capacity to the Hunter Valley train network due to the unreliability of the Port Kembla Coal Terminal, a facility not operated or controlled by the Respondent. See the Statement of Mullard, paragraph 17 and pages 004, 09, 43 and 063 of the Bundle.

14. The reduction in work led to a reduction in the need for train crews and a requirement for a greater focus on costs.

15. The Respondent decided that operationally it required 7 fewer train crew employees operating from its IBT Depot. These were full time permanent roles. This decision impacted the Applicants Smith and Deering who worked at IBT Depot. See pages 004, 09 and 063 of the Bundle. See the Statement of Mullard, paragraph 20.

All Depots of the Respondent

16. Each Applicant was provided with a letter of termination of employment, 14 days in advance of their dismissal, that identified the reasons for dismissal as redundancy: see page 172 (Preston); page 177 (Lucas); page 182 (Pemberton); page 216 (Deering); page 224 (Smith); page 254 (Ross); page 260 (Skinner); page 266 (Bryant); and page 272 (Hill).

17. Each of the former Parkes and Cootamundra Depot Applicants was provided with a letter of termination of employment that referred to ‘reduced grain volumes and haulage tasks.’ Each of the former IBT Depot Applicants was provided with a letter of termination of employment that referred to ‘reduced demand requirements.’ 9

…

[9] Mr Pryor conceded all points under the heading ‘CONSULTATION’ in the respondent’s submissions 10, subject to the following amendment of point 32:

32. None of the Applicants lodged an expression of interest for voluntary redundancy or a written expression of interest to transfer to Moss Vale or Enfield. 11

[11] Mr Pryor conceded the points mentioned under the title ‘REASONABLENESS OF REDEPLOYMENT’ in the respondent’s submissions 12 (subject to underlined amendments (below)):

“41. The Respondent informed each of the Applicants that it had considered and would continue to consider up to the respective dates of their termination of employment alternative roles for them within the Asciano Group. This began with the 29 May 2015 notification to all affected employees including the Applicants (page 008 of the Bundle), which identified 52 new full time and part time train crew roles at the Enfield and Moss Vale Depots of the Respondent (page 010 of the Bundle) and provided a list of current Asciano Group opportunities for employment (pages 014 and 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent. Employees had the right to lodge a written expression of interest for a role at the Enfield and Moss Vale Depots of the Respondent during the consultation period up to 14 June 2015.

42. During the consultation meetings on 1 to 4 June 2015 at Parkes, Cootamundra and Port Kembla, information about redeployment opportunities was provided by the Respondent. See pages 039 and 065 of the Bundle, addressing both internal transfers available to Enfield and Moss Vale Depots and a further redeployment period managed by the Respondent’s careers team during the 2-week period after an employee was notified that they were selected for involuntary redundancy.

43. In the ‘Message from the GM’ sent by email to affected employees, the Respondent referred to the transfer opportunities at Enfield and Moss Vale Depots for any ‘displaced individuals.’ See page 043 of the Bundle.

44. Further notifications were given to employees in a Memo sent on 10 June 2015 about the progress of the labour rationalisation process.

See pages 084 to 090 of the Bundle, especially at page 088 and 089 for employees at IBT and pages 092 to 099 of the Bundle especially at pages 092 and 093 for employees at the Parkes and Cootamundra Depots. Employees were reminded that they could lodge an expression of interest for redeployment to Moss Vale or Enfield Depots until 14 June 2015.

45. Attached to the 10 June 2015 Memo was a set of ‘Questions & Answers’ about the labour rationalisation. With respect to the available transfers to Moss Vale and Enfield Depots, see pages 084 to 085 and 095 to 096 (questions 5 and 6), where employees were given further information about the process for applying to transfer prior to the Respondent making a decision about which employees would be selected for involuntary redundancy. If an employee successfully applied for a transfer, then they would be provided with financial support to relocate in accordance with the respective Enterprise Agreement which applied to them.

46. The ‘Questions & Answers’ issued on 10 June 2015 also referred to the redeployment process that would be followed if an employee was selected for involuntary redundancy.

See pages 086 and 097 of the Bundle (question 10). This referred to the 14-day redeployment period, during which the Respondent may identify a suitable employment opportunity. Unless an employee was redeployed, it was only after that 14-day period that the employee’s employment terminated.

47. The Respondent now addresses additional specific circumstances of the Applicants.

Mr Preston

48. Mr Preston (from the Cootamundra Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He requested and obtained an estimate from the Respondent of the redundancy pay he would receive in order to evaluate whether to apply for voluntary redundancy, but he did not express an interest in it (see the Statement of King, paragraph 28). He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent.

49. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Preston was given a termination letter (page 172 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 23 June 2015. See pages 174 to 176 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 23 June 2015.

50. As Mr Preston said during the 24 June 2015 meeting that he wanted to be contacted by Asciano Careers (see the Statement of Hopwood, paragraph 39, and the Statement of King, paragraph 49), on 26 June 2015 Mr King sent his name to Aleisha Chiba by email. See pages 253 and 196 of the Bundle and the Statement of King, paragraph 52.” 13

51. During the 24 June 2015 meeting, Mr Preston also said that he would consider one of the truck driver positions in the Patrick division of Asciano Group. See the Statement of King, paragraph 49.(Subject to the truck driver position in fact being a forklift driver position). 14

...

53. Mr Preston’s employment was terminated on 10 July 2015. He was paid his termination of employment entitlements. See page 295 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Lucas

54. Mr Lucas (from the Cootamundra Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent. 15

…

56. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Lucas was given a termination letter (page 177 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 23 June 2015. See pages 179 to 181 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 23 June 2015.

57. As Mr Lucas said during the 24 June 2015 meeting that he wanted to be contacted by Asciano Careers (see the Statement of Hopwood, paragraph 36, and the Statement of King, paragraph 50), on 26 June 2015 Mr King sent his name to Aleisha Chiba by email. See pages 253 and 196 of the Bundle and the Statement of King, paragraph 52.

58. During the 24 June 2015 meeting with Mr Lucas, he said that he would speak to his wife about a move to a role at Enfield or Moss Vale. See the Statement of Hopwood, paragraph 36. He also said that he wanted to explore job options in Queensland with Asciano Careers, and was informed that he would not be required to work out his notice period in order to allow him time to look at redeployment opportunities. See the Statement of King, paragraph 50. 16

…

60. Mr Lucas’s employment was terminated on 10 July 2015. He was paid his termination of employment entitlements. See page 294 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Pemberton

61. Mr Pemberton (from the Cootamundra Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent as at 29 May 2015 and at all other enterprises associated with the Respondent.

62. On 5 June 2015, Mr Pemberton was informed orally about the labour rationalisation including how to express an interest in one of the positions available at Moss Vale and Enfield Depots and also about the opportunity to apply for positions listed on the Asciano Group’s website, a hard copy (as at 29 May 2015) of which was sent to employees on or about that day. See the Statement of Hopwood, paragraph 19 (see pages 014 to 015 of the Bundle).

63. On 24 June 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Pemberton was given a termination letter (page 182 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 23 June 2015. See pages 184 to 186 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 23 June 2015. The list included opportunities for qualified locomotive drivers at Moolabin, Brisbane. See page 184 of the Bundle.

64. As Mr Pemberton said during the 24 June 2015 meeting that he wanted to be contacted by Asciano Careers (see the Statement of Hopwood, paragraph 42), on 26 June 2015 Mr King sent his name to Aleisha Chiba by email. See pages 253 and 196 of the Bundle and the Statement of King, paragraph 52.

65. During the meeting on 24 June 2015, Mr Pemberton said that he was exploring opportunities himself and had expressed an interest in positions with Asciano. See the Statement of Hopwood, paragraph 42 and the Statement of King, paragraph 51.

66. On or about 30 June 2015, Mr Karavas of Asciano Careers spoke to Mr Pemberton and during that conversation, informed Mr Karavas that he was only interested in a position with the respondent at Moolabin, Queensland. See the Statement of Karavas, paragraph 20.

67. A further meeting between Mr Hopwood and Mr Pemberton was arranged to take place on 2 July 2015, but Mr Pemberton informed Mr Hopwood that he would not be attending. See the Statement of Hopwood, paragraph 44.

68. Mr Pemberton applied for one of the Respondent’s positions at Moolabin in Queensland. See the Statement of Hopwood, paragraph 28.

69. On 9 July 2015, the day before his employment was due to terminate, Mr Pemberton was informed that this would not occur and that instead, he would work out his notice period while his application for the Moolabin position was being considered. See the Statement of King, paragraph 73 and annexure RK2 to the Statement and the Statement of Hopwood, paragraph 45.

70. Mr Pemberton had been absent on workers compensation during the labour rationalisation process and up to July 2015. In July 2015 during the time when his application for the Moolabin role was being considered by the Respondent, he was certified fit to work other than at Cootamundra Depot. Mr Pemberton accepted a temporary transfer to work at the Moss Vale Depot of the Respondent which he commenced on or about 20 July 2015. See the Statement of Hopwood, paragraphs 45 to 47 and the Statement of King, paragraph 75. 17

…

72. Mr Pemberton’s employment was terminated on 28 August 2015. He was paid his termination of employment entitlements. See page 310 of the Bundle. His termination pay included redundancy pay.

Mr Hill

89. Mr Hill (from the Parkes Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 29 May 2015.

90. During the consultation period 1 to 14 June 2015 but prior to any decision being made by the Respondent to select employees for involuntary redundancy, Mr Hill was one of 6 candidates from the Parkes Depot who applied for a vacant role for a Shift Manager based at the Parkes Depot. He was unsuccessful. See the Statement of Thornhill, paragraph 25. 18

…

92. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Hill was given a termination letter (page 272 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 274 to 277 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

93. As Mr Hill said during the 3 July 2015 meeting that he did not want to be contacted by Asciano Careers, Mr King did not include his name on the list of Parkes Depot employees sent to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71. 19

95. Mr Hill’s employment was terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 300 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Ross

96. Mr Ross (from the Parkes Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 29 May 2015. 20

…

98. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Ross was given a termination letter (page 254 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 256 to 259 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

99. As Mr Ross said during the 3 July 2015 meeting that he wanted to be contacted by Asciano Careers, Mr King sent his name to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

100. On 3 July 2015, Perry Karavas of Asciano Careers was given the task of contacting Mr Ross. See the Statement of Karavas, paragraph 7. 21

…

102. Mr Thornhill met with Mr Ross on 9 July 2015, informed him that a labour hire firm, Momentum, would be used by the Respondent for labour hire needs. He gave him the business card of a person from Momentum and invited him to register with Momentum. See the Statement of Thornhill, paragraphs 38 and 39.

103. Mr Ross’s employment terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 299 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay.

Ms Bryant

104. Ms Bryant (from the Parkes Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. She did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 29 May 2015. 22

…

106. On 3 July 2015 during a meeting to inform her that she had been selected for involuntary redundancy, Ms Bryant was given a termination letter (page 266 of the Bundle). The letter informed her about the start of a 14-day redeployment period, that if she was not redeployed, then her employment would terminate due to redundancy and she would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 268 to 271 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015.

107. During the 3 July 2015 meeting, Ms Bryant asked whether there was a redeployment opportunity at Mudgee, which there was not. See the Statement of King, paragraph 70.

108. As Ms Bryant said during the 3 July 2015 meeting that she wanted to be contacted by Asciano Careers, Mr King sent her name to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

109. On 3 July 2015, Perry Karavas from Asciano Careers was given the task of contacting Ms Bryant. See the Statement of Karavas, paragraph 7. 23

…

111. Mr Thornhill met with Ms Bryant on 9 July 2015, and informed her that a labour hire firm, Momentum, would be used by the Respondent for labour hire needs. He gave her the business card of a person from Momentum and invited her to register with Momentum. See the Statement of Thornhill, paragraphs 38 and 39.

112. Ms Bryant’s employment terminated on 17 July 2015. She was paid her termination of employment entitlements. See page 301 of the Bundle. Her termination pay included pay in lieu of notice of termination and redundancy pay.

Mr Skinner

113. Mr Skinner (from the Parkes Depot) did not submit an expression of interest for voluntary redundancy or to transfer to one of the available positions at Moss Vale and Enfield. He did not apply for any of the available positions listed in the 29 May 2015 current opportunities list (pages 014 to 015 of the Bundle). This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 29 May 2015. 24

…

115. On 3 July 2015 during a meeting to inform him that he had been selected for involuntary redundancy, Mr Skinner was given a termination letter (page 260 of the Bundle). The letter informed him about the start of a 14-day redeployment period, that if he was not redeployed, then his employment would terminate due to redundancy and he would be paid in lieu of notice calculated from the end of the redeployment period. Attached to the termination letter was a list of current opportunities for employment within the Asciano Group as at 1 July 2015. See pages 262 to 265 of the Bundle. This was a list of all available positions at the Respondent and at all other enterprises associated with the Respondent as at 1 July 2015. 25

…

117. As Mr Skinner said during the 3 July 2015 meeting that he did not want to be contacted by Asciano Careers, Mr King did not include his name on the list of Parkes Depot employees sent to Aleisha Chiba by email. See pages 252 and 197 of the Bundle and the Statement of King, paragraph 71.

118. Mr Thornhill met with Mr Skinner on 9 July 2015, and informed him that a labour hire firm, Momentum, would be used by the Respondent for labour hire needs. He gave him the business card of a person from Momentum and invited him to register with Momentum. See the Statement of Thornhill, paragraphs 38 and 39.

119. Mr Skinner’s employment terminated on 17 July 2015. He was paid his termination of employment entitlements. See page 298 of the Bundle. His termination pay included pay in lieu of notice of termination and redundancy pay. 26

Protection from Unfair Dismissal

[13] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal. In the present matters it is not in dispute that each of the applicants were so protected (the respondent concedes the same). 27

[14] Further, there is no dispute that the applicants had completed the minimum employment period, and are covered by the Bulk Rail EA (again the respondent concedes the same). 28 Consequently, the Commission, as presently constituted, is satisfied that each of the applicants was protected from unfair dismissal.

[15] I will now consider if the dismissal of the applicants by the respondent was unfair within the meaning of the FW Act.

Was the Dismissal Unfair?

[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

Were the applicants dismissed?

[17] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 contains the relevant definition. In this present matter this is not an issue in dispute (the respondent concedes the same). 29

[18] Consequently, the Commission, as presently constituted, finds that the applicants were dismissed from their employment within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[19] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). However, the Code is only relevant if the employer is a small business. The respondent is not. 30 Consequently, compliance with the Code is not a relevant consideration.

Grant Skinner

[22] Mr Skinner commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.

Was the applicant’s job no longer required to be performed?

[23] To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied the role of Locomotive Driver (level 3) was no longer required to be performed by anyone because of operational changes to the respondent at the Parkes Depot 31. While the applicant makes the point that the functions performed by him continued to be performed after the termination of his employment, it was not seriously contested that the job of locomotive driver was no longer required32.

[24] The FW Act does not define the term “operational requirements”. It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business 33. Some examples of changes in operational requirements include a downturn in trade that reduces the number of employees required and the employer restructuring the business to improve efficiency including the redistribution of tasks done by a particular person between several other employees thus resulting in the person’s job no longer existing. 34

[25] The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 35

[26] The respondent submitted that operational changes were implemented (Exhibit R1 36) and this was accepted by Mr Pryor37. Consequently, the Commission, as presently constituted, accepts the respondent’s submissions that as a result of the reduction in customer demand in exports of grain38, the loss of NRE Limited due to its closure, and the loss of another site from Centennial Coal39, a reduction in workload altered its operational requirements and resulted in labour rationalisation. Therefore, the Commission, as presently constituted, is satisfied the roles of each of the applicants were no longer required to be performed by anyone because of operational changes.

Did the respondent comply with any consultation obligations

[27] I must now consider whether the respondent was obliged by a modern award or enterprise agreement to consult with the applicants about the redundancy prior to the dismissal.

[28] It is common ground between the parties that, at the time of the dismissal, the Bulk Rail EA applied to the employment relationship.

[29] The consultation provisions in the Bulk Rail EA appear at Clause 30. It is important to set out the clause of the Award:

“30 Consultation and Change

Consultation

(a) The parties are committed to pursue all opportunities to adopt the world’s best practices through modern technology and continuous improvement to all aspects of Pacific National Bulk Rail operations.

(b) Levels of staffing, equipment and methods of operation may be varied from time to time by Pacific Bulk Rail to reflect the need for safe work practices, improved technology, and new types of machinery or systems, customer service needs or for any other reason.

(c) Pacific National Bulk Rail having made a definite decision that it intends to proceed with any significant change shall issue a notification, in writing, advising:

(i) The affected Employees, or their representatives and their Union;

(ii) The nature of the change;

(iii) The reason for it;

(iv) The timing of it; and

(v) Any other relevant information.

(d)

(i) Pacific National Bulk Rail shall allow the Employee, their representative and the Union, an opportunity to express their view or concerns. Pacific National Bulk Rail will allow Employees, their representative and their Union to actively participate in the consultative process. That is, allow for the reasonable release and payment of Employees to attend meetings and access to entitlements as provided for in this Agreement.

(ii) Pacific National Bulk Rail shall genuinely consult and consider any views or advice from the Employees, their representative and their Union in relation to the proposed change and provide written reasons addressing concerns raised by Employees and or Employee representatives.

(e) This consultative process must be completed within a period of fourteen (14) days from the date of notification by Pacific National Bulk Rail as set out in Clause 30 (c) above, subject to the provisions of Clause 30 (d) being complied with. Failure to comply with the provisions of Clause 30 (d) will delay and or extend the fourteen (14) day period accordingly.”

[30] The respondent concedes it had a duty to consult and submits that for the purpose of section 389(1) (b) of the FW Act, it complied with its obligations under Clause 30 of the Bulk Rail EA to consult all of the applicants about their redundancy. 40

Was there consultation?

[31] Senior Deputy President Hamberger summed up the obligations under the Bulk Rail EA in Gilbert & Ors v. Asciano Services Pty Ltd t/a Pacific Nation Bulk Rail [2015] FWC 364 at [11]:

● “notify the affected employees and the RTBU, in writing, advising them of the nature of the proposed reduction in the workforce, the reasons for the proposed reduction, the timing of the proposed reduction, and any other relevant information;

● allow the RTBU and the affected employees an opportunity to express their views or concerns about the workforce reduction, and to actively participate in the consultative process. That includes allowing for the reasonable release and payment of employees to attend meetings and access entitlements as provided for in the enterprise agreement;

● genuinely consult and consider any views or advice from the RTBU and affected employees in relation to the proposed workforce reduction and provide written reasons addressing concerns raised as part of that process.”

[32] In its final closing written submissions the RTBU submitted that after the meetings held on 1-3 July 2015, the respondent did not consult Mr Skinner about progressing labour rationalisation. Further, it submitted that during the meeting held on 3 July 2015 the respondent gave no consideration to the views of the employees or the RTBU. The RTBU submitted that an application for an extension of time to allow the Union to assist in finding possible alternate work within the Asciano enterprise/entities was denied by the respondent. However, even if that is true, the Union has not made out a case that, the failure to afford it an extension of time, caused the respondent to be in breach of the Bulk Rail EA.

[33] Mr Skinner gave evidence that he did not receive a feedback form at the 1-2 June meetings. The Union says this evidences the respondent’s failure to adhere to its obligations under the Bulk Rail EA.

[34] The respondent submits a meeting was held on 27 May 2015 giving advanced notice to Mr Pryor and Mr Wright of the RTBU, followed by the written notification given to both the Unions and Employees on 29 May 2015 (which is not contested). 41 It is submitted that on many occasions Mr Skinner was offered a voluntary redundancy opportunity with the possibility of redeployment to Moss Vale or Enfield, both of which he rejected.42

[35] As previously mentioned, Mr Pryor accepted the factual basis of the respondent’s submissions in Exhibit R1 under the heading ‘CONSULTATION”. It is clear from these facts that the obligations of the employer under the Bulk Rail EA to consult with employees and unions were in fact adhered to. Mr Pryor accepted as much at one point in time 43, before raising the issue of the Union’s request for an extension of time which was rejected44. However the Unions and employees were offered an opportunity to voice their concerns on more than one occasion. In Mr Skinner’s case he asked not to be contacted by the careers department of Asciano45. Further, Asciano gave advanced notice to the RTBU of their upcoming intentions, which essential allowed the RTBU an opportunity to raise issues in relation to consultation from 29 May till 17 July 2015.

[36] It is well established that:

a) the consultation should be meaningful and should be engaged in before an irreversible decision to terminate has been made; 46 and

b) “Consultation is not perfunctory advice on what is about to happen ... [c]onsultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” 47

[37] It might be said that, the manner in which the consultation was conducted in relation to Mr Skinner could have been done so in a more productive and considerate manner, however, the Commission as presently constituted, is satisfied the steps taken by the employer satisfied their obligations under the Bulk Rail EA (particularly given the lack of cooperation of Mr Skinner) and that they were meaningful to the extent they communicated the nature of the change, the reasons, timing and other relevant information. In the present circumstances the employer’s rejection to the request for an extension did not amount to a failure to comply with its consultancy obligations.

Mark Pemberton

[45] Mr Pemberton commenced employment at Asciano on 20 August 2012, at the Cootamundra Depot as a Trainee Locomotive Driver.

[46] Mr Pemberton conceded under cross-examination that he received the memorandum of 29 May 2016 notifying him of the impeding significant changes 48, he was also aware of the meetings that were conducted between the Union and the respondent in regards to these changes49. Further, he conceded he was aware of the expression of interest form provided, and confirmed he received the form50. Mr Pemberton also confirmed he received the feedback form provided in an email from Ms Pia Dish on 2 June 2015, which Mr Pemberton did not fill in or submit to the employer51. Mr Pemberton confirmed that he received the email of 2 June 2015, from Mr Cowan, advising of the upcoming labour rationalisation, and the increased vacancies at Moss Vale and Enfield, inviting employees to contact their HR Representative if they are interested52. Mr Pemberton submitted he was unable to attend the meetings of 1-3 June 2015 as he was ill53, but conceded that a telephone conversation informing him of the labour rationalisation, and opening of new positions at the above mentioned sites, to which the expression of interest form was to be completed if he was interested54. I am satisfied, by providing written notice addressing the concerns of the Unions and employee, the respondent met its consultation obligations under the Bulk Rail EA.

[47] A meeting was held on 24 June 2015 at which Mr Pemberton was informed he would be made involuntary redundant, due to his low KSA (knowledge, skills and abilities) Score. He requested that a meeting be held in relation to discussing and disclosure of the KSA scores, to which he then stated he could not attend and no further action was taken by either party 55. The applicant made a decision to apply for the Moolabin position on 29 June 2015 as it suited his circumstances, and conceded he was only interest in that position56.

[48] The respondent submits the applicant took no action demonstrating interest in any other positions available. It also submits that the only position that Mr Pemberton was interested in was one where the respondent rejected his application due to his lack of qualifications. The respondent submitted this did not amount to a breach of their obligations, and the dismissal was a genuine redundancy.

Joshua Ross

[51] Mr Ross commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.

[52] Mr Ross was subject to a similar consultation process as Mr Skinner, accordingly I am satisfied the respondent fulfilled its duty to consult. It is then left to determine whether it would have been reasonable to redeploy Mr Ross.

[53] Mr Ross alleges that at the meeting of 3 July 2015 with Mr Thornhill and Mr Daley, he expressed interest to the Moss Vale positions. He says Mr Daley responded that the positions had all been filled. Further, the Union submitted that the respondent’s careers team was complacent in not contacting the applicant on his personal phone number, when the respondent contacted him on that number ordinarily, as opposed to his work number. 57

[54] The respondent submitted, that Mr Daley did not state in the meeting of 3 July 2015, that the Moss Vale positions were full. The respondent submitted that, such a statement would contradict what was conveyed in the memorandum of 29 May 2015, and what was put to some of the other applicants, repeatedly throughout the consultation process. Further, the respondent submitted that, had the applicant not removed the SIM card from the work phone and no longer used it, it would have been obvious that Asciano Careers were in fact trying to contact him to assist him with possible redeployment. 58

[55] Mr Ross conceded he received the memorandum of 29 May 2016, which informed that there were 10 full time positions available at Moss Vale and 27 full time positions at Enfield 59. In these circumstances it is most unlikely that the respondent would tell one employee (namely, Mr Ross) the positions in Moss Vale were full when in fact they were not. Further, the applicant had taken note of the Memo and was aware of the vacant positions in Moss Vale, he then asked that he be contacted by Asciano Careers. In my view he should have recognised that it might have been likely he would be contacted on the work number provided to him. No action was taken by Mr Ross in contacting Asciano Careers or informing the respondent that he had not been contacted.

Ian Raymond Lucas

[58] Mr Lucas commenced employment at Asciano around 2004, at the Parkes Depot as a Trainee Locomotive Driver.

[59] It is undisputed that Mr Lucas received the feedback form and the notices of 2, 10 and 18 June 2015 by email. Mr Lucas stated in cross examination that he is computer illiterate and I am satisfied the respondent was aware of Mr Lucas’ inability to access and use emails.

[60] The RTBU argued that the employer sent the memorandum of 29 May 2015 by post because the employer was aware of the fact that the applicant was not confident with emailing, and stressed the point that Asciano would organise computer aid for Mr Lucas when conducting first aid courses at work.

[61] The respondent submitted that it complied with its consultation obligations as it had provided notice to the employee in writing. Further, the applicant accepted that a phone conversation occurred between Mr Hopwood and himself on 4 June 2015; however the details of this conversation are a matter of dispute between the parties. RTBU put it to Mr Lucas that the phone call involved discussions surrounding the topic of labour rationalisation and putting Mr Lucas on notice of the possibility of voluntary redundancy.

[62] Mr Lucas did not refute, neither did he recall the details of the discussion. Despite this, looking at the Bulk Rail EA, it is clearly outlined that the duty of the employer in consultation is to inform the relevant employees and unions “in writing” of the proposed changes. No limits or restrictions are placed upon this provision and the decision of the employer to contact Mr Lucas’ by email cannot be taken to be a contravention of the agreement. I am therefore satisfied that the employer’s consultation requirements were adhered to. It was not submitted that the email was never received into Mr Lucas’ email, therefore it is taken that the email was in fact received and therefore provided.

[63] Mr Lucas in cross examination stated that the only location he was interest in being redeployed to was Moss Vale 60. Mr Lucas stated he was unable to submit an expression of interest before 24 June 2015, as he was not made aware that he was going to be made forced redundant. Further, it was asserted that he was informed that numbers at Moss Vale were full, and for this reason he did not submit an expression of interest.

[64] The employer submits that Mr Lucas’ evidence should not be accepted given the contradictory nature of his answers in cross examination to the statements made in Exhibit A6. Specifically, in his statement at [43] stating that he was asked about whether he would like to be transferred to either Moss Vale or Enfield compared with is oral evidence that he was not asked whether or not he would like to be transferred to Moss Vale or Enfield, and also could not account for how the talk of Moss Vale was brought up in the meeting 61. Considering the contradictory nature of the evidence, Mr Lucas’ witness statement is preferable to his answers in cross-examination and are taken to reflect a true recount of what was said at the meeting, as the same recount was provided in the statement of Mr Skinner, that on 3 July 2015 (after the meeting of Mr Lucas) i.e. Mr King mentioned to him that there are positions available in Moss Vale62.

[65] Given that it is now accepted that the proposition of a transfer to Moss Vale was put to Mr Lucas, it would seem unlikely that the employer would propose a redeployment opportunity, to then turn it down and claim it is full moments later. Mr Lucas was made aware on the memorandum of 29 May 2015 of the opportunities in Moss Vale, and was then asked about these same redundancies on the meeting of 24 June 2015. Mr Lucas expressed he would like to be contacted by Asciano Careers 63.

[66] On 30 June 2015 he was contacted by Asciano Careers, where in that conversation he was advised ‘if there are positions available (at Moss Vale)…they will be available on the Asciano website” 64. As mentioned above the actions of an employee are considered when determining if redeployment was reasonable. Mr Lucas took no further action to inspect whether positions in Moss Vale were available, it is acceptable that one might not be capable of using a computer or lack an internet connection, however when being directed to check the website for possible availabilities, it would seem reasonable that an opportunity to access internet or a computer could have been sufficiently created without disruption of one’s ordinary daily routine. Further, the applicant took no action to contact the respondent regarding the possibility of Moss Vale positions being vacant, or to flag his difficulties with accessing the job opportunities online.

[67] I acknowledge that Mr Lucas, of all the applicants, was the closest to expressing some interest in redeployment to Moss Vale 65. However, the expression made by Mr Lucas, was not made in writing, which was crucial to the validity of an expression of interest. ~~In these circumstances, despite Mr Lucas’ queries about redeployment to Moss Vale, his failure to make an expression in writing weighs in favour of the respondent.~~

[69] In summary, I am satisfied that the employer met its consultation obligations under the Bulk Rail EA. The consultation process fulfilled the necessary requirements, and could not have accounted for an employee whom has no internet/email connection. Further, the evidence provided by the respondent as to why Mr King would not have denied positions being available at Moss Vale, was preferable to the account provided by Mr Lucas.

Kadin Hill

[71] Mr Hill commenced employment at Asciano on 9 January 2012, at the Parkes Depot as a Trainee Locomotive Driver.

[72] Mr Hill conceded the following in cross examination; he attended the meeting on 1 June 2015 at the Parkes depot where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meetings, another meeting was held with other employees and the Unions 66. Mr Hill did not refute nor accept that he received an email from Mr Cowan on 2 June67, he did see the memorandum of the 10 June 2015, however did not specify on which date68. He further accepted that a meeting was held on 3 July 2015, with Mr Daly, Ms K Smith, and with Mr Symonds accompanying Mr Hill as a representative69. At this meeting Mr Hill rejected the notion of moving to a position at Moss Vale, Enfield, or any of the other locations attached to the letter of termination70. Mr Hill also accepted that the positions attached to his statement, which he claimed were the employer’s advertisements of his old position, were in fact different positions to his71.

[73] Mr Hill was informed in writing of the major work place changes to occur at the workplace. Mr Hill attended three separate meetings. The first meeting was held with the employer, where he was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting was held with the Unions, which discussed the same topics mentioned by the employer. The third meeting which informed Mr Hill of his redundancy occurred on 3 July, where he was made aware of all redeployment opportunities, and communicated he was not able to move due to his current circumstances. He did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.

Abigail Bryant

[76] Ms Bryant commenced employment at Asciano on 22 August 2011, at the Parkes Depot as a Trainee Locomotive Driver.

[77] Ms Bryant’s circumstances are of similar nature to Mr Hill. In cross examination she conceded that she attended the meeting of 1 June 2015 at the Parkes depot where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meeting, another meeting was held with other employees and the Union 72. Ms Bryant did not refute nor accept that she received update emails from Asciano as she was away on holiday73. Ms Bryant attended a meeting on 3 July 2015 where she was handed the letter of Termination and a list of available opportunities, none of which were suitable to her circumstances74.

[78] Ms Bryant was informed in writing of the major work place changes to occur at the workplace. Ms Bryant attended three separate meetings. The first meeting was held with the employer, where she was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting was held with the Unions, which discussed the same topics mentioned by the employer. The third meeting of 3 July 2015 which informed Ms Bryant of her redundancy, where she was made aware of all redeployment opportunities, and communicated she was not able to move due to her current circumstances. She did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.

[79] I am satisfied that at the time of the termination, the employer satisfied its obligation to consult and that Ms Bryant did not wish to be redeployed to any of the available positions. Mention was made of redeployment to the Bathurst Depot, but in these circumstances where Bathurst is 4 hours away from Parkes, it could not be deemed reasonable to redeploy Ms Bryant within the respondent’s enterprise.

Mareck Preston

[81] Mr Preston commenced employment at Asciano on 8 November 2010, at the Nowra Depot as a Trainee Locomotive Driver. Mr Preston was then transferred to the Cootamundra Depot as a level 3 Terminal Operator and Trainee Driver in approximately January 2012.

[82] Mr Preston’s circumstances are of similar nature to Mr Hill. In cross examination he conceded the following. He attended the meeting of the 3 June 2015 at the Cootamundra Ex-Services Club where a PowerPoint presentation was shown, which reflected the terms and conditions of consultation, transfer opportunities to other depots, including Moss vale and Enfield, information on voluntary redundancies, and at the end of that meeting, another meeting was held with other employees and the Union 75. Mr Preston accepted that the emails sent out in the period between the 3 June and the next meeting of 24 June 2015, were sent to a collective recipient “Bulk Rail” in which his email was included. Mr Preston stated in cross-examination he had not accessed his emails for 9 months as he was not able to log in76. Mr Preston attended a meeting on 24 June where he was handed the letter of Termination and a list of available opportunities, none of which were suitable to his circumstances77.

[83] Mr Preston was informed in writing of the major work place changes to occur at the workplace. Mr Preston attended two separate meetings 78. The first meeting was held with the employer, where he was shown a PowerPoint presentation explaining in detail the process of consultation and voluntary redundancy. The second meeting on 24 June 2015 which informed Mr Preston of his redundancy, where he was made aware of all redeployment opportunities, and Mr Preston stated at the outset of the meeting none of the available opportunities were suitable to him. He did not file an expression of interest nor pursue any further action in requesting redeployment, but in fact turned down offers of redeployment by the respondent.

[85] Mr Preston was contacted by Asciano Careers around the 30 June 2015, to discuss available opportunities for redeployment, at which point Mr Preston again stated he was not interested. 79

[86] The respondent put forward a number of opportunities for Mr Preston to be redeployed, or at least express interest in redeployment, including in Moss Vale and Enfield, to which the applicant rejected all available opportunities due to his circumstances.”

[9] As has already been observed, a Full Bench of the Commission decided that the termination of the applicants’ employment was not a case of genuine redundancy. Consequently, the Commission has been satisfied of s.385(a), (c) and (d) of the FW Act.

[10] Therefore the task for me upon rehearing the matters is to consider whether I am satisfied the dismissal of each of the applicants was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b) whether the person was notified of that reason; and
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h) any other matters that the FWC considers relevant.”

[11] Ordinarily I would be under a duty to consider each of these criteria in reaching my conclusion. 80 However, because the dismissal was not a case of genuine redundancy the consideration of the matters specified in s.387(a), (b) and (c) are neutral, unless in the circumstances another valid reason is identified. No other valid reason was identified by the respondent.

[12] Matters arising from the redundancy (e.g. a failure to consider the possibility of voluntary swaps, or the unfair application of a selection criteria) fall within s.387 (h). 81 It was this approach that I proposed to the parties without objection.82

[13] Therefore, in relation to each of the applicants I am satisfied that:

Valid reason - s.387(a)

a) The respondent did not assert that the reasons for the dismissal of the applicants were not related to their capacity or conduct. Accordingly there cannot have been, and there was not, a valid reason for the dismissals related to the applicants’ capacity or conduct.

b) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Notification of the valid reason and opportunity to respond - s.387(b), (c)

a) The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to capacity or conduct.

b) The dismissal of the applicants was not related to capacity or conduct.

c) Consequently, in all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Unreasonable refusal by the employer to allow a support person - s.387(d)

a) Where an employee protected from unfair dismissal requests a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

b) In the present matters all of the applicants were represented by their union, the RTBU. There was no refusal (unreasonable or otherwise) to allow them to have a support person.

c) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

a) The respondent did not assert that the dismissal of the applicants related to their unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissals were harsh, unjust or unreasonable.

b) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f), (g)

a) The size of a respondent’s enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a respondent’s enterprise should ensure a higher standard of management of human resources.

b) In the present matter the respondent is a large employer and well resourced.

c) In all the circumstances it is apparent that the size of the respondent did not have any adverse effect on the procedures it adopted in dismissing the applicants. In fact it could have been expected that an employer such as the respondent, with the resources it had at its disposal, would have done better in the execution of the KSA process (which I deal with later).

d) In all the circumstances of these cases I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of each of the applicants was harsh, unjust or unreasonable.

Any other matters that the FWC considers relevant – s.387(h)

[14] Having considered each of ss.387(a), (b), (c), (d), (e), (f) of the FW Act, it remains necessary to now consider subsection 387(h) in respect of each of the applicants. Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[15] Once I have considered s.387(h) in combination with each of ss.387(a), (b), (c), (d), (e), (f) of the FW Act, I must then decide (in respect of each applicant) if, in all the circumstances, the termination of each of the applicants’ employment was harsh, unjust or unreasonable. Deciding whether the termination was ultimately unfair involves the exercise of discretion.

[16] Although section 387 includes matters that the Commission must take into account in deciding how to exercise its discretion, the discretion conferred is otherwise expressed in general, unqualified terms. Of course, the discretion conferred must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.

[17] In exercising the discretion, guidance can be drawn from s.381 of the FW Act. It provides that:

“Object of this Part

(1) The object of this Part is:

a) To establish a framework for dealing with unfair dismissal that balances:

a. The needs of business (including small business); and

b. The needs of employees; and

b) To establish procedures for dealing with unfair dismissal that:

a. Are quick, flexible and informal; and

b. Address the needs of employers and employees; and

c) To provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: the expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

Submissions on behalf of the applicants at the rehearing

[18] On behalf of the applicants it was submitted that:

“4. The applicants say that their dismissals were unfair for four main reasons.

5. First, they say that their dismissals were unfair because the process (known to Asciano and the applicants as the ‘Knowledge and Skills Assessment’ or ‘KSA’) that led to them being selected for redundancy rather than anyone else was itself unfair and was certainly not objective or transparent and was partial in its application.

6. The applicants submit that the KSA process was both procedurally and substantively unfair. It was procedurally unfair because at no time before the decision was made to dismiss them (or even after) were the applicants entitled to be heard or to attempt to influence any matter in it which was adverse to their interests. It was substantively unfair because it was not transparent, those applying it were unaccountable, there was nothing done to ensure the process was applied consistently and equally and it was open to abuse based as it was on the subjective opinion of managers.

7. Second, they say that their dismissals were unfair because in the circumstances it would have been reasonable for them to be redeployed within the respondents business. In this regard the applicants expressly rely upon the findings of the Full Bench in Skinner & Ors v Asciano Services Pty Limited t/a Pacific National Bulk 83 which was to that effect.

8. Third, the applicants say that their dismissal were unfair because of the failure to consider redundancy swaps, to identify what redundancy swaps might reasonably be available - by asking questions or sending emails - to clearly articulate to the applicants what redundancy swaps were available, to permit them to take up those swaps and to consult with them and the proposed retained workforce of train drivers.

9. Fourth, they say that the complete failure to have any regard at all to the applicants personal circumstances (treating them like commodities and not human beings) led to their dismissals being unfair.

10. It is useful to deal with each of the asserted grounds of unfairness in turn.

The Knowledge and Skills Assessment Process (KSA)

11. The sole and only determinant in the selection of individuals who were to be made involuntarily redundant (and therefore resulted in the applicants being dismissed from their employment) throughout the redundancy process of 2015 was that of the KSA process 84.

12. The evidence of Mr King 85 and the Production Bundle86 are particularly relevant to this issue.

13. The purpose of the KSA process was to achieve a reduction in the overall headcount of the Asciano’s train driver workforce across the Bulk Division. It was not directed to classifications or particular types of train drivers, but rather to the reduction of train driver numbers per se. 87 The notion that it was about selecting particular kinds of train drivers (e.g. drivers under instruction or second persons or mentors) for redundancy was only relevant when KSA scores were assessed (the drivers classification was one of the objective criteria to be attributed a score), but was otherwise irrelevant to the exercise. The suggestion more recently that somehow train driver classification otherwise figured in the equation should be rejected.

14. Further, the notion of head count reduction (and redundancy) should not be a disguise for denying employees an opportunity to be heard if they are to be dismissed for conduct or performance issues. Nor should it be a smokescreen for cleaning out what managers considered to be, for any reason, unwanted employees.

15. The KSA process involved the development of criteria against which employees would be scored from 1 to 5 and then have their scores totalled and ranked against the rest of the train driver work force. The lowest scoring train drivers would then be dismissed from employment by reason of redundancy.

16. The final criteria that were applied to the applicants were:

a. Positive attitude;

b. Attendance, punctuality and reliability;

c. Commitment to customer service;

d. Supportive team behaviour towards peers and leaders;

e. Is proactive and demonstrates initiative;

f. Demonstrates the value of ‘home safely everyday’;

g. Performance record;

h. Driver level;

i. Technical qualification;

j. Time driving; and

k. Experience at multiple locations. 88

17. The guidelines distributed to the local managers conducting the KSA scoring process outlined the scores that could be given. Each of the criteria were to be assessed and given a score between 1 (the lowest possible score) and 5 (the highest possible score) with each score for each criteria being subject to a different descriptor which determined the score to be given.

18. The descriptors which were used to determine scores in many cases (and especially in the case of the subjective criteria referred to below) left a great deal of room for interpretation especially in relation to some of the more subjective criteria, more of which will be addressed in a moment. The guidelines contain the criteria and the descriptors and it is not necessary to address each of them here. 89

19. In the documents distributed to managers there was no suggestion that half scores or decimal places could be awarded and nor were there any descriptors that suggested so much. The system of scoring only ever contemplated the use of whole numbers. 90

20. The managers completing the KSA scoring process for the applicants were informed that they must be able to substantiate all the KSA scores with supporting evidence. 91 This was not an optional requirement – it was mandatory (with only a few minor exceptions none of that ‘evidence’ was produced to the Commission – a matter to which these submissions will return later).

21. After managers assessed the scores there was a ‘calibration’ meeting where people unknown (in the sense that they had nothing to do directly with employees) to the employees ‘calibrated’ scores. The managers who knew the employees and had assessed them were not involved in the ‘calibration’ meeting. 92 ‘Calibration’ (apparently) meant some scores were changed although it is not now possible to know whose scores where changed or why which perhaps emphasises again the lack of transparency and accountability in the process.93

22. The people at the ‘calibration’ meeting (much like the Commission) had no evidence about the scores and why people were given the scores they received. All they had were the score sheets that had been completed by mangers which contained names and scores alongside each of the eleven criteria. 94

23. Part of what was enshrined in the process was that an employee (or anyone on their behalf) was not given their score nor told how they had been assessed until after the decision to dismiss them was made. In fact, employees knew nothing until after they were told they were being dismissed. They were not entitled to correct errors of any kind at any time and managers were instructed not to listen or take into account anything they might have to say no matter what.

24. There was a meeting after an employee was told they had been selected for redundancy, but this, as will be seen later, was not a meeting at which an employee would be heard. So far as the KSA process was concerned no correspondence would be entered into at all. There was to be no debate about the scores and Asciano would not countenance any attempt by employees to increase their scores. 95

25. Immediately, it should be said that there were three very troubling aspects of the KSA process – employees had no opportunity to influence the KSA score they received, approximately half of the criteria were subjective (discretionary) and thirdly, the so-called ‘calibration’ meetings proceeded when there was no evidence at all to be looked at. 96 Each of these matters together with the other deficiencies is the KSA process are further developed below.

Subjectivity and the KSA Process

26. One of the requirements imposed throughout the KSA process was that the criteria and related scores for all employees must be justifiable and substantiated by evidence which included file notes, performance review documents, performance outcomes. 97 Mr King confirmed that ‘evidence’ meant ‘documents’.98

27. This is significant because employees who were fortunate enough to receive praise in documents or unfortunate enough to receive discipline in documents were at an advantage or disadvantage over those who were only subject to word of mouth communication. 99 It also highlighted the fact that there should have been documents in existence to support each and every one of the applicants and the other 107 employees’ scores – yet only a handful of documents in fact existed.

28. Some of the KSA criteria – such as driver level and technical qualification, time driving and experience at multiple locations – are objective standards that can be measured in one way or another. I will return to the ‘fairness’ of some of these criteria later.

29. Some of the KSA criteria – such as positive attitude, commitment to customer service, supportive team behaviours towards peers and leaders, is proactive and demonstrates initiative and demonstrates the value of ‘home safely every day’ - are inherently subjective.

30. There is not much of an explanation about what these things meant in the context of the KSA and it is fair to say that the explanations afforded clearly had the potential to mean different things to different people.

31. In any event the subjective criteria were rather obviously subject to discretionary application by managers. Those criteria were not capable of measurement nor could they be (or were they) supported by evidence (documents, as to which see later). In this regard it is telling that no evidence about them went to the ‘calibration’ meeting and no evidence of any kind relevant to them as it applied to the applicants has been put before the Commission. The proposition that these criteria were subjective was accepted by the respondent. 100

32. These criteria left open the real prospect of differential application across mangers applying the criteria and preferential treatment both across managers and within managers groups of employees.

33. There is no possible objective measure that would, for example, support the lowest score of ‘1’ for positive attitude. For almost half of the criteria the sole determinative factor of the resulting scores was simply the untested and unchallengeable opinion of the relevant manager. The manager did not have to (and having regard to the process adopted did not) explain or justify at all why she or he gave the score he gave to anyone. Such discretionary application of the KSA guidelines concerning the way in which scores were to be attributed undermines the credibility and fairness of the entire process and infects the decision to dismiss each of the applicants with unfairness.

[47] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Pemberton was harsh, unjust or unreasonable. Mr Pemberton had a very low KSA (even considering the procedural and substantive deficiencies in that process), he was not interested in redeployment and only interested in a move to Brisbane.

[48] Accordingly, the Commission, as presently constituted, finds Mr Pemberton’s dismissal was not unfair within the meaning of the FW Act. Mr Pemberton’s application for an unfair dismissal remedy must, therefore, be dismissed.

[49] An Order will be issued with this decision.

Application by Joshua Ross (U2015/9790)

[50] In respect of Mr Ross I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Ross’ role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Ross did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Ross for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Ross did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Ross received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Ross:

i. At the time of his dismissal he had been employed for around 3 ½ years.
ii. He wanted to be contacted by Asciano Careers, however, he took the SIM card out of his work provided phone.
iii. He expressed interest in being engaged through a labour hire firm. He was told that the firm was Momentum. He was invited to register with them.
iv. He expressed interest in Moss Vale (which I reject he was told was full), but he did not complete a written expression of interest as required.

Each of the above matters (except (b)(ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[51] I am further satisfied that (and consider relevant):

i. Mr Ross was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Ross’ employment was harsh, unjust or unreasonable.
iii. Mr Ross obtained a KSA score of 24.5. He was the 3^rd lowest rating at the Parkes depot. There were 7 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Ross’ KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Ross’ employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Ross.

[52] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Ross was harsh, unjust or unreasonable. Mr Ross had a very low KSA (even when considering the procedural and substantive deficiencies in that process). Further he did not apply for redeployment and because he was still in training it was more difficult to offer him a VR swap.

[53] Accordingly, the Commission, as presently constituted, finds Mr Ross’ dismissal was not unfair within the meaning of the FW Act. Mr Ross’ application for an unfair dismissal remedy must, therefore, be dismissed.

[54] An Order will be issued with this decision.

Application by Ian Lucas (U2015/9795)

[55] In respect of Mr Lucas I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Lucas’ role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Lucas did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Lucas for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Lucas did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Lucas received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Lucas:

i. At the time of his dismissal Mr Lucas had been employed for around 11 years.
ii. Indicated that he did want Asciano Careers to make contact with him.
iii. Expressed some interest in exploring a role at Moss Vale or Enfield subject to discussing the same with his wife and ultimately settled upon Moss Vale.
iv. Indicated a preparedness to explore job opportunities in Queensland.
v. He is computer illiterate and this impacted upon his ability to access and use emails during the relevant time.
vi. On 30 June 2015 he was contacted by Asciano Careers and told that available positions at Moss Vale would be available on the Asciano website.
vii. Despite being interested in Moss Vale, he did not submit a written expression of interest (his computer illiteracy contributed to this fact).
viii. He was not told that Moss Vale was full.
ix. He expressed interest in VR swaps.

Each of the above matters (except (b)(i), (ii), (iii), (iv), (v), and (ix)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[56] I am further satisfied that (and consider relevant):

i. Mr Lucas was a Locomotive Driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Lucas’ employment was harsh, unjust or unreasonable.
iii. Mr Lucas scored high on objective criteria, but low on subjective measures (that was not substantiated by evidence).
iv. Mr Lucas obtained a KSA score of 24. He ranked 46^th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.
v. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Lucas’ KSA score.
vi. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Lucas’ employment was harsh, unjust or unreasonable.
vii. As a Locomotive Driver the possibility of a swap was more likely for Mr Lucas.

[57] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Lucas was unreasonable. Having regard to him being an experienced driver and having scored so highly on the objective criteria in the KSA, the dismissal was unreasonable because (it would appear) it was decided upon inferences (in relation to the subjective criteria) which could not reasonably have been drawn from the material before the respondent.

[58] Accordingly, the Commission, as presently constituted, finds Mr Lucas’ dismissal was unfair within the meaning of the FW Act. Mr Lucas’ application for an unfair dismissal remedy will now be programmed for further hearing in relation to what remedy, if any, should be awarded.

[59] An Order and Directions will be issued with this decision.

Application by Kadin Hill (U2015/9798)

[60] In respect of Mr Hill I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Mr Hill’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Hill did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Hill for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Hill did not express in writing any interest to transfer to Moss Vale or Enfield. In fact he rejected both opportunities.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Hill received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision, I am satisfied that, specifically in relation to Mr Hill:

i. At the time of his dismissal Mr Hill had been employed for around 3 ½ years.
ii. He did express interest in a Shift Manager position at the Parkes Depot, but was unsuccessful in the selection process.
iii. He had indicated that he did not want to be contacted by Asciano Careers.
iv. Because of his personal circumstances he was unable to move for work away from Parkes.

Each of the above matters (except (b)(iv)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[61] I am further satisfied that (and consider relevant):

i. Mr Hill was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Hill’s employment was harsh, unjust or unreasonable.
iii. Mr Hill obtained a KSA score of 23. He had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were also selected for redundancy. He would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Hill’s KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Hill’s employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Mr Hill.

[62] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Hill was harsh, unjust or unreasonable. Mr Hill had a very low KSA (even considering the procedural and substantive defects in that process). Being in training a VR swap or other redeployment options were less viable for the respondent to offer him. He was not interested in moving from Parkes.

[63] Accordingly, the Commission, as presently constituted, finds Mr Hill’s dismissal was not unfair within the meaning of the FW Act. Mr Hill’s application for an unfair dismissal remedy must, therefore, be dismissed.

[64] An Order will be issued with this decision.

Application by Abigail Bryant (U2015/9802)

[65] In respect of Ms Bryant I consider the following matters to be relevant to the determination of whether her dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.
ii. Ms Bryant’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Ms Bryant did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Ms Bryant for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots).
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Ms Bryant did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Ms Bryant received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Ms Bryant:

i. At the time of her dismissal she had been employed with the respondent for nearly 4 years.
ii. She asked about an opportunity at Mudgee.
iii. There was also some consideration given to redeployment to the Bathurst depot, but it was 4 hours away from Parkes.
iv. She said she wanted to be contacted by Asciano Careers.
v. She was informed about Momentum providing labour hire services into the future and was provided with information about how to register with them.
vi. Because of her personal circumstances she was unable to move for work away from Parkes.

Each of the above matters (except (b)(ii), (iii), (iv) and (vi)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[66] I am further satisfied that (and consider relevant),

i. Ms Bryant was a Mainline Driver in training.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Ms Bryant’s employment was harsh, unjust or unreasonable.
iii. Ms Bryant obtained a KSA score of 23. Ms Bryant had the equal second lowest rating at the Parkes depot. There were 9 employees with better ratings who were selected for redundancy. She would have had to achieve a score of 28 to avoid selection.
iv. Although the calibration process lacked any forensic integrity it did not result in a reduction in Ms Bryant’s KSA score. In fact, it went up.
v. The failure of the respondent to consider VR swaps supports a finding that the termination of Ms Bryant’s employment was harsh, unjust or unreasonable.
vi. However, as a Mainline Driver in training the possibility of a swap was less likely for Ms Bryant.
vii. Ms Bryant did not seriously consider nor did she suggest to the respondent (as she did to the Commission the first time during the rehearing) that she would be interested in a position at Mudgee that required her to travel approximately 400 km each day on her own time (i.e. unpaid). In any case there is no evidence that there was a vacant role at Mudgee at the relevant time.

[67] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Ms Bryant was harsh, unjust or unreasonable. Ms Bryant had a very low KSA (even considering the procedural and substantive defects in that process). She was not seriously interested in redeployment outside of Parkes.

[68] Accordingly, the Commission, as presently constituted, finds Ms Bryant’s dismissal was not unfair within the meaning of the FW Act. Ms Bryant’s application for an unfair dismissal remedy must, therefore, be dismissed.

[69] An Order will be issued with this decision.

Application by Mareck Preston (U2015/9805)

[70] In respect of Mr Preston I consider the following matters to be relevant to the determination of whether his dismissal was harsh, unjust or unreasonable:

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that:

i. Because of a reduction in workloads and grain volumes the respondent had a significantly reduced demand for its services and, consequently, train crews at both its Cootamundra and Parkes depots.

ii. Mr Preston’s role was no longer required to be performed by anyone because of operational changes at his depot.
iii. Mr Preston did not lodge an expression of interest for a VR.
iv. On 27 May 2015 the RTBU was given advanced notice of the decision to be communicated to the affected employees.
v. From 29 May 2015 Asciano was prepared to consider Mr Preston for alternative roles (in particular 52 new full time and part time roles at the Moss Vale and Enfield depots). Mr Preston did not apply for any of the positions.
vi. The respondent held information sessions for affected employees on 1 – 4 June 2015.
vii. Affected employees were further advised of the processes (including a Q&A about labour rationalisation) and opportunities on 10 June 2015 and had an opportunity to apply for positions up to 14 June 2015.
viii. The respondent offered financial support to relocate.
ix. The respondent complied with its obligations to consult with its employees and the RTBU about the impending redundancies.
x. The consultation engaged in by the respondent was meaningful. Further, the consultation was engaged in before an irreversible decision to terminate was made. The consultation was not perfunctory.
xi. Mr Preston did not express in writing any interest to transfer to Moss Vale or Enfield.
xii. A letter of termination was provided (14 days in advance of dismissal) that confirmed that the reason for dismissal was redundancy.
xiii. Mr Preston received a termination pay comprising a payment in lieu of notice and severance pay.

Each of the above matters tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

a) For the reasons stated in the Genuine Redundancy Decision I am satisfied that, specifically in relation to Mr Preston:

i. He did tell the respondent that he wanted to be contacted by its career section.
ii. He said he would consider one of the truck driver positions in the Patrick division (subject to the position being a forklift driving position).
iii. He had not accessed his email to which the respondent had sent much of the information about the redeployment and redundancy process because, he said, he was not able to log in.
iv. On 24 June 2015 he attended a meeting at which further opportunities were provided, but they were unsuitable to his circumstances.
v. A further opportunity for redeployment was provided to Mr Preston when he was contacted by Asciano Careers around 30 June 2015. Again he stated that he was not interested in redeployment.

Each of the above matters (except (b)(i) and (ii)) tells against a conclusion that the dismissal was harsh, unjust or unreasonable.

[71] I am further satisfied that (and consider relevant):

i. Mr Preston was a Locomotive Driver.
ii. The procedural and substantive defects in the KSA process support a finding that the termination of Mr Preston’s employment was harsh, unjust or unreasonable.
iii. Mr Preston scored “1” on the criteria “supportive team behaviours towards peers and leaders” despite there being no evidence to support such a finding.
iv. Mr Preston obtained a KSA score of 22. He was ranked 47^th out of 49 employees at the Cootamundra depot. He would have had to achieve a score of 27.5 to avoid selection.
v. Mr Preston ended the meeting that was conducted to allow him to discuss his KSA score (although noting that, nothing he said would have changed the result).
vi. Although the calibration process lacked any forensic integrity it did not result in a reduction in Mr Preston’s KSA score.
vii. The failure of the respondent to consider VR swaps supports a finding that the termination of Mr Preston’s employment was harsh, unjust or unreasonable.
viii. As a Locomotive Driver the possibility of a swap was more likely for Mr Preston. However, Mr Preston made it clear that he was not interested in redeployment.

[72] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied that, overall, and having regard to the obligation to afford a “fair go all round” the dismissal of Mr Preston was harsh, unjust or unreasonable. His lack of any interest in redeployment and his low KSA score (even allowing for procedural and substantive deficiencies) tells against a finding being made against the respondent in this matter.

[73] Accordingly, the Commission, as presently constituted, finds Mr Preston’s dismissal was not unfair within the meaning of the FW Act. Mr Preston’s application for an unfair dismissal remedy must, therefore, be dismissed.

[74] An Order will be issued with this decision.

COMMISSIONER

Appearances:

Reitano, R of Counsel for the applicants.

Meehan, S of Counsel for the respondent.

Hearing details:

Parkes,

10 April,

2017

Final written submissions:

Applicant’s Final Submissions dated 5 May 2017

Respondent’s Final Submissions dated 22 May 2017

Applicant’s Final Submissions in Reply dated 29 May 2017

Joint Final Submissions on paragraphs in the Genuine Redundancy Decision that were not disturbed by the Full Bench Decision dated 28 July 2017

1 Positions as agreed between the parties and communicated to the Commission on 7 August 2017.

2 As per email from RTBU on 13 February 2017 updating the remedy sought by each applicant.

3 [2016] FWC 2720.

4 [2017] FWCFB 112.

5 [2017] FWCFB 574, [59].

6 Section 596(2)(a) of the FW Act.

7 Section 382(a) of the FW Act

9 Transcript PN92- PN112

10 Exhibit R1

11 Transcript PN179- PN185

12 Exhibit R1

13 Transcript PN191-PN228

14 Transcript PN235-PN236

15 Transcript PN262- PN267

16 Transcript PN287 - PN292

17 Transcript PN312 - PN335

18 Transcript PN463 - PN468

19 Transcript PN471 - PN174

20 Transcript PN479 - PN483

21 Transcript PN485 - PN490

22 Transcript PN495 - PN500

23 Transcript PN505 – PN509

24 Transcript PN519 - PN525

25 Transcript PN527 - PN530

26 Transcript PN537 - PN542

27 Exhibit R1 at 4(i)

28 Exhibit R1 at 4(f),(g),(h)

29 Exhibit R1 at 4(d)

30 Exhibit R1 at 4(e)

31 Exhibit R1 at 11-12

32 Transcript PN 99-102

33 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

34 Explanatory Memorandum, Fair Work Bill 2008, [1548].

35 Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

36 At 7-19

37 Transcript PN 93-113

38 Exhibit R1 at 8

39 Ibid at 13

40 Exhibit R1 at para 20

41 Transcript PN179 - PN185

42 Transcript PN2780

43 Transcript PN58

44 Transcript PN130

45 Exhibit A8 at Para 30

46 Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202, 218; cited in

Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 (unreported, Jones C, 21 June 2012) [20].

47 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

Vodafone Network Pty Ltd (unreported, AIRC, Smith C, 14 November 2001) PR911257 [25].

48 Transcript PN2106

49 Transcript PN2114

50 Transcript PN2126

51 Transcript PN2143 - PN2145

52 Transcript PN2161

53 Transcript PN2163

54 Transcript PN2170 - PN2176

55 Exhibit A4 at para 8

56 Transcript PN2260 - PN2261

57 Applicant’s Final Closing Submissions at para 153-156

58 Closing Submissions of Respondent on Jurisdiction at para 99

59 Transcript PN2834

60 Transcript PN2584 - PN2585

61 Transcript PN2597 - PN2604

62 Exhibit A8 at para 31

63 Exhibit A6 at para 48

64 Exhibit A6 at para 76

65 Exhibit A6 at para 44 and 75

66 Transcript PN3057 - PN3064

67 Transcript PN3072 - PN3074

68 Transcript PN3080

69 Transcript PN3090 - PN3092

70 Transcript PN3103 - PN3106

71 Transcript PN3128 - PN3129

72 Transcript PN2969 - PN2981

73 Transcript PN2991

74 Transcript PN2989

75 Transcript PN2425 - PN2426

76 Transcript PN2447 - PN2449

77 Transcript PN2501 - PN2504

78 Transcript PN2424

79 Transcript PN2513

80 Sayer v Melsteel[2011] FWAFB 7498.

81 UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

82 Rehearing Transcript PN35 – PN39.

83 [2016] FWCFB 574 at esp. [57] and [58]

84 Transcript PN746

85 Transcript PN742 to PN1137

86 Exhibit A25

87 Transcript PN772 to PN 776.

88 The final criteria are set out in pages SP080 to SP 083 of Exhibit A25

89 Exhibit A25 – SP080 to SP083

90 Exhibit A25 – SP081 to SP083

91 Exhibit A25 – SP080

92 Transcript PN1120

93 Transcript PN1089 – PN1092

94 Transcript PN1037 – PN1040

95 Exhibit A25 – SP076

96 See the Commission’s observations about this at PN1356

97 Exhibit A25 – SP080

98 Transcript PN823

99 Transcript PN852

100 Transcript PN812, PN849 - PN850, PN857 - PN863

101 Exhibit A25 – SP077

102 Transcript PN1052

103 Exhibit A15 at [4]

104 Exhibit A25 – SP120

105 Exhibit A20 at [5]

106 Exhibit A21 at [5]

107 Exhibit A10 at [78] – [80]

108 Exhibit R11

109 Exhibit A25 at SP122 and SP123

110 Exhibit A25 at SP122

111 Exhibit A25 at SP123

112 Exhibit A15 at [4]

113 Exhibit A25 at SP120

114 Transcript PN881 - PN882

115 Transcript PN874 - PN876

116 Exhibit A25 at SP 081 – SP 083, Transcript PN1068 - PN1070

117 Transcript PN982

118 Transcript PN1020

119 Transcript PN1035

120 Transcript PN998

121 Exhibit R12 at [25]

122 Transcript PN1040 – PN1042

123 Transcript PN1019

124 Exhibit R12

125 Transcript PN959

126 Transcript PN902 - PN922

127 Transcript PN941 - PN941

128 [2016] FWCFB 574 at esp. [57] and [58]

129 Exhibit R12 at [18]

130 Transcript PN754 - PN765

131 Transcript PN123 to PN144 and in Exhibits A22 and A23

132 Exhibit A11 at [29]

133 Exhibit A5 at [63]

134 The findings recorded at paragraph [26] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants’ closing submissions that the Commission should not make the same findings on the rehearing.

135 The findings recorded at paragraph [37] of Skinner & Pemberton and Others v Asciano Services Pty Ltd [2016] FWC 2720 were not challenged on appeal and there is no suggestion in the applicants’ closing submissions that the Commission should not make the same findings on the rehearing.

136 See in particular clause 17(f)

137 King, 4 April 2017, at [22]

138 Skinner & Ors Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB 574 at [58]

139 UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241at [27]

140 See s.385 of the Fair Work Act 2009

141 See in this regard footnote 1 above

142 See Wang v Crestell Industries Pty Ltd(1997) 73 IR 454 at 458, 464;

143 UES (Int'l) Pty Ltd v. Leevan Harvey [2012] FWAFB 5241 at [27]; Carnes v Wagners Industrial Services Pty Ltd[2015] FWC 3254 at [51]

144 See also Dixon v Natures Organics Pty Ltd[2013] FWC 9720 at [58] – [60]; Supara v SlumberCare Pty Ltd[2013] FWC 8704 at [52] – [54]

145 See by way of parity of reasoning in relation to consultation, Priest v HFB Pty Ltd ATF HFB Admin Trust[2016] FWC 802 [46(e)]

146 Applicants’ submissions dated 5 May 2017 at [44]

147 King, 4 April 2017, at [24]

148 Applicants’ submission at [18]

149 Applicants’ submission at [19]

150 Applicants’ submission at [21]

151 Applicants’ submission at [22]

152 Applicants’ submission at [23]

153 Applicants’ submission at [25]

154 Applicants’ submission at [25]

155 King, 4 April 2017, at [27]

156 KSA scores were changed and the KSA spread sheets were updated (paragraph 28 of the statement of King, Ex R12 and pages SP 116, 119, 159 & 160 of Ex A25)

157 See for example Farquharson v Qantas Airways Limited[2006] AIRC 488; (2006) 155 IR 22 at [41]

158 T. 10.04.17 at PN 317

159 T. 10.04.17 at PN 340

160 Skinner, 13 March 2017 at [5]

161 King, 4 April 2017, at 35(b)

162 Ibid.

163 Pemberton, 14 March 2017, at [4]

164 Skinner & Pemberton and Others v Asciano Services Pty Ltd [2017] FWCFB

165 Section 381(2) of the Act

166 See the submissions referred to in paragraph 1(a) and (b) above

167 Bryant, Ross, Hill, Skinner and Pemberton – Exhibit R2 at 301, 299, 300, 298 and 310; T. 10.04.17, PN 305

168 PN 173

169 PN 194 - 195

170 PN 192

171 PN 193

172 PN 198

173 PN 214

174 T. 10.04.17 PN 173

175 Pemberton, 14 March 2017, at [6]

176 King, 23 November 2015, at [27]

177 Applicants’ submissions at [68]

178 In this regard Asciano has obligations under clauses 17(h)(iv) and 32 of the Pacific National Bulk Rail Enterprise Agreement 2013 to pay relocation expenses

179 King, 4 April 2017, at [9]

180 King, 23 November 2015 at [16] – [19]

181 Thornhill, 19 October 2015, at [27]

182 T. 26.11.17 at PN 959 - 968

183 T. 27.11.17 at PN 1341

184 There appears to be some inconsistency in the evidence as Mr King identifies the successful candidate as Mr Searle; King, 4 April 2017 at [17]

185 King, 4 April 2017, at [17]

186 King, 4 April 2017, at [18]

187 Arscott at [3]

188 King, 4 April 2017, at [41]

189 King, 4 April 2017, at [40]

190 Skinner & Ors v. Asciano Services Pty Ltd[2016] FWC 2720 at [11] (66); [49]

191 Ibid. at [84] - [85]

192 King, 4 April 2017, at [45]

193 Exhibit A25 at SP 159 - 160

194 King, 4 April 2017 at [11]

195 Applicants’ submissions at [71]

196 King, 4 April 2017, at [

197 Applicants’ submissions at [72]

198 UES (Int’l) Pty Ltd v Leevan Harvey [2012] FWAFB 5241 at [27]-[28].

199 Ibid at [27]

200 Ibid at [29]

201 Cliffe v Construction Glazing [2015] FWC 1008 at [60]

202 Ibid at [59]

203 Transcript PN38

204 Applicant’s outline of submissions of 05 May 2017 at [11]-[66]

205 Respondent’s closing submissions on rehearing of 22 May 2017 at [23]

206 Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57]-[58]

207 Applicant’s final closing submissions on jurisdiction of 15 January 2016

208 Respondent’s closing submissions on rehearing of 22 May 2017 at [69]

209 Clause 17(b)(i) of the Pacific National Enterprise Agreement 2013.

210 Skinner & Ors v Asciano Services Pty Ltd T/A Pacific National Bulk [2016] FWCFB 574 at [57].

211 Respondent’s closing submissions on rehearing of 22 May 2017 at [52].

212 Respondent’s closing submissions on rehearing of 22 May 2017 at [69].

213 Byrne v Australian Airlines Ltd (1995) 185 CLR 411

214 [2012] FWAFB 5241.

215 Rehearing transcript PN35 – 39.

216 (2006) 155 IR 22.

217 Rehearing transcript PN947 – PN949.

218 Rehearing transcript PN982.

219 [2017] FWCFB 112, [58].

Printed by authority of the Commonwealth Government Printer

Grant Skinner, Mark Pemberton, Joshua Ross, Ian Raymond Lucas, Kadin Hill, Abigail Bryant, Mareck PrestonvAsciano Services Pty Ltd T/A Pacific National Bulk

[2017] FWC 4273

18 AUGUST 2017

DECISION