DECISION

Fair Work Act 2009
s.120—Redundancy pay

Intergrated Facility Solutions Pty Ltd T/A IFS
(C2014/4849 and C2014/4748)

COMMISSIONER LEE

MELBOURNE, 15 JANUARY 2015

Applications to vary redundancy pay for other employment - National Employment Standards - whether employer obtained acceptable alternative employment - applications not granted.

[1] Integrated Facility Solutions Pty Ltd T/A IFS (the Applicant) has made two applications to the Fair Work Commission (the Commission) pursuant to section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay otherwise due to a number of its former employees (the affected employees). The names of the affected employees are set out in the applications. The applications under section 120 of the Act are made on the basis that the Applicant has obtained other acceptable employment for the affected employees when Serco brought in-house or “in-sourced” the cleaning work previously undertaken by the Applicant. The Applicant seeks that the obligation to pay redundancy pay to the affected employees under the National Employment Standards be reduced to zero for every employee the subject of the applications.

[2] The first application deals with affected employees in the Northern Territory and the second deals with affected employees in Western Australia. The facility in the Northern Territory was at Wickham Point. The facility in Western Australia was at Yongah Hill. However, as it was evident that the two applications dealt with essentially the same circumstances, I determined it would be more efficient to deal with both applications concurrently. This manner of dealing with the applications was not objected to by the Applicant. I note that some of the evidence is specific to the particular site and I have taken that into consideration in reaching a decision in these matters.

[3] Those affected employees who have made submissions in these matters, oppose the applications on the basis that the Applicant has not fulfilled the obligations regarding the obtaining of other acceptable employment for the Respondent.

[4] The parties filed some materials in response to the directions. Neither the Applicant nor any of the affected employees provided witness statements. A number of the affected employees sent through emails describing their personal experience with the ending of the Applicant’s contract. All parties were offered the opportunity of participating in a hearing. The Applicant as well as a number of affected employees sought a hearing. Accordingly a hearing was held on 16 December 2014.

[5] Two of the affected employees attended the hearing from Darwin and gave evidence, Ms. Woodbury and Ms. Whakaue. Mr. Taylor sought and was granted permission to appear to represent Ms. Woodbury and Ms. Whakaue. Permission was granted on the basis that there was some complexity in the matter and the representation of counsel would enable the matter to be dealt with more efficiently. Permission to appear for Mr. Taylor was not objected to by the Applicant at the hearing.

[6] The Applicant was represented by Mr. Saward (Compliance Administrator for the Applicant). Evidence for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Intergrated Facility Solutions Pty Ltd T/A IFS [2015] FWC 220
Case: [2015] FWC 220
Decision Date: 15 JANUARY 2015

CaseChat Overview and Summary

Integrated Facility Solutions Pty Ltd, trading as IFS, sought to vary redundancy payments for employees who had been made redundant, contending that the employees had obtained alternative employment. The dispute was heard by the Fair Work Commission. The primary legal issues before the Commission involved whether the employer had fulfilled its obligation to provide acceptable alternative employment and whether the employees were entitled to redundancy pay under the National Employment Standards.

The Commission examined the evidence presented regarding the nature and suitability of the alternative employment secured by the employees. It found that the alternative roles did not meet the criteria for acceptable employment, as they did not provide equivalent or better terms and conditions compared to the roles from which the employees were made redundant. Furthermore, the Commission assessed whether the employer had acted reasonably and in good faith in offering the alternative employment. The evidence indicated that the employer had not made sufficient efforts to secure employment that met the necessary standards. Consequently, the Commission ruled that the employer had not satisfied the requirements for varying the redundancy payments.

The Fair Work Commission denied the applications to vary the redundancy pay, holding that the employer had not demonstrated that the employees had obtained acceptable alternative employment. As a result, the employees were entitled to the full redundancy pay as stipulated by the National Employment Standards. The Commission's decision underscored the importance of employers providing genuine alternative employment opportunities that meet the necessary criteria when seeking to vary redundancy payments.

Orders