Hender Lee Electrical And Instrumentation T/A Hender Lee Electrical Contractors Pty Ltd
[2023] FWC 446
•22 FEBRUARY 2023
| [2023] FWC 446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Hender Lee Electrical And Instrumentation T/A Hender Lee Electrical Contractors Pty Ltd
(C2022/6739)
| COMMISSIONER SCHNEIDER | PERTH, 22 FEBRUARY 2023 |
Variation of redundancy pay
This decision concerns an application made by Hender Lee Electrical Contractors Pty Ltd (Hender Lee) to reduce the amount of redundancy pay to which an employee, Mr Craig Passmore (Mr Passmore) is entitled under section 119 of the Fair Work Act 2009 (Cth) (the Act).
The parties have provided written materials outlining their respective positions. Having considered the evidence and submissions, I have determined that the Application will be dismissed, and there will be no reduction in the redundancy payment to which Mr Passmore is entitled. My reasons are as follows.
Background
Mr Passmore commenced employment at Hender Lee in April 2021 and his employment ceased in September 2022.
Mr Passmore was employed under the terms and conditions of the Hender Lee Electrical Contractors Pty Ltd Enterprise Agreement 2017-2021 (the Agreement).
Consistent with the terms and conditions of the Agreement, Mr Passmore, being an employee who was employed for more than one year but less than two years, is entitled to four weeks redundancy payment.
Mr Passmore declined Hender Lee’s offer of an alternative role, noting that the role required him to work on a fly in fly out roster (FIFO). Mr Passmore’s previous role was subject to a more standard, Monday to Friday, roster and based largely within the Perth region.
Hender Lee seek to reduce the redundancy payment to two weeks on the basis that Mr Passmore refused other acceptable employment within the Hender Lee business.
Mr Passmore objects to the application on the grounds that the role offered was not acceptable employment and was not substantially similar to his previous role.
Submissions
Hender Lee
Hender Lee notes that the contract signed by Mr Passmore allowed for him to be employed on a fulltime basis and stated, “the works / position can be on multiple sites across WA”.
Hender Lee is of the position that the contract of employment signed by Mr Passmore had envisaged situations or scenarios whereby Mr Passmore could be required to work outside of metropolitan Perth.
Hender Lee submits that Mr Passmore, in his previous role, completed work for the business outside of the Perth metropolitan region in regional locations within Western Australia.
Hender Lee submits that, under the two weeks on one week off roster in the new role, Mr Passmore would have an additional twenty-five days off per year when compared to his previous arrangement of working Monday to Friday.
Hender Lee submits that the remuneration on offer in the new position was more favourable to Mr Passmore, including:
· a $6.00 per hour increase in his base hourly rate of payment; and
· an increase in his Project Incentive Payment (PIP) of over $235.00 per week.
Hender Lee submits that the position being offered to Mr Passmore was consistent with his skills and training as an Electrician and that the business was not seeking him to complete work that he would be unfamiliar with or that was outside of his skill set and competence.
Hender Lee submits that the reason for seeking to redeploy Mr Passmore to a FIFO position was due to no work being available in the Perth metropolitan region. Therefore, the business sought to redeploy him to an available FIFO position to complete work for another Hender Lee client.
Hender Lee submits that, once work became available back in the Perth region, it would have been open to moving Mr Passmore back to a Perth based position.
Hender Lee seeks a 50% reduction in the redundancy payment from four weeks to two weeks, as efforts had been made by the business to redeploy Mr Passmore to a position within his skill set and capability.
Mr Passmore
Mr Passmore submits that he had joined Hender Lee to work in the Perth metropolitan area and that the position being offered on a FIFO basis, working a two week on and one week off roster, was not substantially the same as his previous position which allowed him to return home each day.
Mr Passmore submits that he was not interested in a role that required him to be FIFO.
Mr Passmore outlined that a FIFO role did not work with his personal commitments and current family requirements.
Mr Passmore noted that, even if the FIFO position was more financially lucrative, he still would not entertain the role as the FIFO lifestyle was not consistent with the work life balance he had in a Perth based position.
Mr Passmore submitted that he had a strong preference for working in the Perth metropolitan region and that he had joined Hender Lee after applying for an advert specifically seeking electricians for the Perth metropolitan region.
Mr Passmore notes that, during his time with Hender Lee, he worked at numerous sites across the greater Perth region, including Gosnells, Thornlie, Belmont, Joondalup, Safety Bay, and Secret Harbour.
Mr Passmore also states that he worked in more remote locations, requiring additional travel to reach, such as Rottnest Island and Esperance. However, Mr Passmore submits that these allocations were for a short duration only and never for an extended period or on a permanent FIFO basis. Mr Passmore further explained that he completed two trips to Esperance for a period of approximately eight days in total to complete works on behalf of Hender Lee.
Mr Passmore submits that, during his recruitment process and the discussions he had with Hender Lee representatives, no mention of any requirements to work a FIFO roster arose prior to him being employed.
Mr Passmore submits that, had he been advised FIFO rosters were a requirement prior to joining Hender Lee, he would not have accepted the contract of employment on those conditions.
Mr Passmore further relies on clause 8.2.2 of the Agreement, that states in the event of redundancy an alternate position is required to be “substantially similar”, to support his submission that the FIFO role, whereby he would be away from his family for two weeks out of every three weeks, was not substantially similar to his previous role working in the Perth metropolitan region and being able to go home every evening.
Legislation
The relevant provision of the Act is set out below:
“120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.
(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”
Key issue in dispute
The key issue in dispute between the parties is summarized in question form as follows:
· Is Hender Lee’s offer to Mr Passmore, to be deployed to a FIFO position working a roster of two weeks on and one week off, other acceptable employment when compared to his previous position?
Consideration
Under section 120 of the Act, what constitutes other acceptable employment is to be determined on an objective basis and in light of the circumstances of the individual employee concerned.[1] It has generally been accepted by the Commission that the following factors, although not an exhaustive list, are relevant considerations under section 120(b)(i):
· The nature of the work;
· The comparability of the work with that performed in the current role;
· Pay levels;
· Hours of work;
· Seniority;
· Fringe benefits;
· Workload and speed;
· Job security;
· Whether the employee will have continuity of service in the new role;
· Location and/or the need to relocate;
· Travel and/or the cost of travel that is additional to that relevant to the original employment;
· Carer’s responsibilities; and
· Family circumstances.[2]
Hender Lee submits that Mr Passmore, at the commencement of his employment, signed a contract which clearly stated that he could be required to work across “multiple sites in WA”.
The contract signed between the parties does not specifically state that the work must be completed in the Perth metropolitan region or within a specific geographical distance from Perth, rather, it is open to the work being completed across the state of Western Australia.
It is clear that Mr Passmore did complete works across multiple locations in Western Australia, including regional areas that required some extended travel, as envisaged by the contract.
Whilst the contract of employment confirms that Mr Passmore may be required to work on “multiple sites in WA”, there is nothing in the contract of employment that would suggest Mr Passmore’s role could be subject to a FIFO roster.
I do not accept that the wording of the contract, or the working arrangement of the redundant role, lends to a finding that Mr Passmore’s previous role and the FIFO role, in relation to roster/location/hours/travel, are comparable.
I have strongly considered the key differences between the position made redundant, which allowed Mr Passmore to work in the Perth metropolitan region and return to his home every evening, and that of the position offered, that would see Mr Passmore away from his family for two weeks out of every three, and I am not satisfied that the role offered was other acceptable employment.
FIFO work is not uncommon, especially for tradespeople in Western Australia, however it is a work style that would understandably, and significantly, conflict with many individual’s professional and personal priorities. An individual who specifically seeks out a role in a metropolitan region, and has been working their role primarily within a metropolitan region, would be reasonable in rejecting an offer of FIFO work that could cause significant conflict with their lifestyle.
The FIFO lifestyle is not for everyone, and Mr Passmore has clearly stated the changes a FIFO roster would force on him are not changes that are welcome or compatible with his needs as it is not comparable to his previous role. Changing from a position with a standard work week in a local area to a two week on one week off FIFO position is significant and would be a considerable variation to most individual’s lives.
The change in roster requirements from a more conventional Monday to Friday arrangement to a FIFO arrangement is the most significant difference between the roles, and I am satisfied this difference is significant enough for a finding that the FIFO role is not other acceptable employment.
Considering all the factors mentioned at [30], in the context of this application and Mr Passmore’s circumstances, I am satisfied that the change in the hours of work, travel requirements, and location between the roles is so significant that the FIFO role could not be considered other acceptable employment for the purposes of reducing the redundancy pay owed.
I accept that the tasks of both roles would likely be substantially similar and that there would be financial benefit in the FIFO role, however, I am not satisfied these factors outweigh the significance of the roster change.
Conclusion
Having considered all the relevant factors, and in consideration of the materials before me, I have determined that the FIFO position offered by Hender Lee to Mr Passmore does not meet the requirements of other acceptable employment pursuant to section 120(b)(i) of the Act.
Accordingly, as I am not satisfied the FIFO role is other acceptable employment for the purposes of the Act, there will be no reduction in the amount of redundancy pay owed to Mr Passmore. The application is dismissed and an Order to that effect has been issued.[3]
COMMISSIONER
[1] [2016] FWC 2880, [11].
[2] [2019] FWC 756, [24]; [2016] FWC 2880, [11].
[3] [PR751015].
Printed by authority of the Commonwealth Government Printer
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