Intergrated Facility Solutions Pty Ltd T/A IFS

[2015] FWC 220

[2015] FWC 220

FAIR WORK COMMISSION

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 the Applicant was provided by Ms. Wilson, the Northern Territory Manager of Operations; Mr. Belchamber the Western Australian State Manager and Mr. DeSilva a Director of the Applicant. Video conferencing was made available but no one attended in Perth.

The Evidence

[7] The Applicant provides cleaning services under contract. In around May 2014 their client, Serco, gave notice to the Applicant that the contract was terminating in respect to services provided at facilities in Wickham Point, approximately 40 kilometres from Darwin in the Northern Territory and at Yongah Hill, approximately 85-90 kilometres from Perth in Western Australia. The relevant facilities at Wickham Point and Yongah Hill are Immigration Detention Centres.

[8] The Applicant submitted that they, “...worked closely with Serco to ensure that all employees were offered employment. Those that were not offered employment by Serco were paid their redundancy entitlements in full or were offered other work in IFS”. The Applicant submitted that the attachments they provided with their submission supported their claim that they ensured that all employees whose job with the Applicant would have ended were offered comparable employment with Serco.

Mr. DeSilva

[9] Mr. Shiromon DeSilva is a director of the Applicant. In summary, the evidence of Mr. DeSilva was that:

• He was the point of contact for Serco nationally.



• He received information from his state manager in Western Australia Mr. Bellchamber that the cleaning positions for his staff had been advertised on Serco notice boards



• He then got in touch with Serco to find out what was happening with the service contract for Western Australia, South Australia and the Northern Territory.



• Eventually he received an email indicating that the service contracts for Yongah Hill and Wickham Point) were coming to an end on the 13 June and 20 June.



• He met with Mr Bill Agellis on 12 May 2014 in Canberra to find out what was happening.



• Mr. Agellis advised him that Serco was taking the contract in-house, that Serco would try and recruit the existing staff and try to purchase the equipment the Applicant was using on site.



• The Applicant had a good working relationship with Serco.



• Once it was known that the contract was terminated that he advised the local IFS managers so that they could let staff know what was happening.



• He advised Mr. Agellis that the Applicant would assist in providing information regarding IFS staff such as police records; training certificates etc. to assist in them obtaining employment with Serco.



• That he did everything possible, including providing personal police clearances; giving them paid time off to attend interviews and get medical certificates; and allowing them to be trained while they were on IFS payroll of the first day of transition to the new contract.

[10] On cross examination Mr. Desilva was asked if he discussed with Mr. Agellis the actual positions that he was seeking to fill and what they were to receive. Mr. Desliva replied;

“I wouldn’t know, all I said discussed was the cleaning staff, that the cleaning staff would get (indistinct) there was no actual questions on that we’re cleaning staff (indistinct) that was the only two questions (indistinct).”

[11] While Mr. DeSilva advised Mr. Agellis that he thought that Serco would need to pay “above award” it was clear on the evidence that Mr. DeSilva did not know what the rates of pay were to be for the cleaning staff.

[12] Mr. DeSilva stated that Mr. Agellis told him that he wanted to retain the staff to make sure the standards of cleanliness were maintained on the site and his exact words were “the best was hanging on to the existing staff”. However, in response to questions from Mr. Taylor, it was clear that Mr. Agellis did not provide to Mr. DeSilva a list of staff that he required; did not guarantee that all cleaning staff were to be employed and that Mr. DeSilva did not write to Mr. Agellis confirming any outcomes from the meeting. 1

[13] The only correspondence in evidence from Mr. DeSilva to Mr. Agellis is an email to him dated May 28 which reads :

“Dear Bill,

Could you please confirm as to which IFS staff members Serco would be engaging to work at the sites as we need to pay redundancies to the remaining staff that you would not be engaging, which will be a cost to us.

Your earliest response to this request would be much appreciated.

Thanks & regards,”

[14] While Mr. DeSilva was the national contact for Serco, he only knew about the contract terminating through his state managers alerting him to the fact that the positions of the staff had already been advertised by Serco.  2

Ms. Wilson

[15] Ms. Wilson was the manager of Wickham Point immigration detention centre in the Northern Territory. Her evidence was that:

• She was approached by staff in late April in 2014 claiming that Serco were advertising for their positions and was handed a copy of an advertisement from Serco for cleaners for the detention centre. Also a Serco officer approached her and said “You’ve lost the contract” and that she then emailed Mr DeSilva and asked whether he was aware of what was happening.



• The last day the Applicant was on the premises at Wickham point was 19 June 2014.



• During the transitional period up until the 19 June 2014, that staff had to go for interviews, medicals, and get their uniforms sized and fitted and that she gave them all the time that was needed to do so.



• The Serco Facility manager approached her and asked for permission to talk to the staff and have them come in for interviews. That Serco approached her and asked for copies of police clearances and evidence of previous training qualifications which she supplied in order to assist Serco and the staff.



• She did not supply a list of staff to Serco, it was that Serco actually supplied her with a list of employees that had already applied for the jobs. 3



• Mike Seymour of Serco, the facility manager was the main point of contact.



• Ms. Whakaue, as well as other staff, spoke to her about the Serco advertisements in April 2014. In response she advised Ms. Whakaue to go on line and see what Serco was paying because she didn’t know.



• She didn’t know whether Serco was going to honour any entitlements of any of the staff at all. 4



• She told staff that if they were interested in jobs with Serco they should apply.



• Staff were advised (by a previous HR manager) that they would need to resign to be paid their entitlements. 5

[16] The following exchange on cross examination provides a further insight into the extent to which Ms. Wilson was involved in obtaining employment for the employees:

“So it was the case, you'd agree with me, wasn't it - or isn't it, that indeed there was nothing that IFS did that resulted in employment of those staff?---We assisted - - -

In regard to Serco?---I assisted Serco with all the necessary information they required in regards to the staff that had already been offered a position and contracts to work for Serco.

So it was in Serco's approach to you and their request for information that you provide that information?---The only information they requested from me is the training certificates that the staff had obtained while in IFS's employment.

So Serco were seeking some confirmation that they had some sort of training. Is that correct?---That's correct.” 6

Mr. Bellchamber

[17] Mr. Bellchamber was the supervisor for the Applicant at Yongah Hill in Western Australia. His evidence was that:

• He was first made aware that the contract may be coming to an end courtesy of some staff advising him that the supervisor and cleaner jobs were advertised on the Serco in house portal.



• He sought clarification from his head office about the situation and after “numerous weeks” it came to fruition that Serco were taking the cleaning service in house.



• He agreed to requests from staff to attend interviews with Serco in Perth (about 90 kilometres away)



• That Mr. Maguire, was the Serco facility manager in Western Australia



• When asked whether he arranged to sit down with Serco to discuss the positions that they were seeking to fill replied, “Not on a one to one basis, it was basically the facility manager that did everything totally-totally behind my back” 7.



• He didn’t know what Serco were offering to pay staff or recognise staff entitlements.



• Serco did not provide him with a list of names of employees they were seeking to employ.

Ms. Whakaue

[18] Ms. Whakaue worked at Wickham point detention centre as a cleaner. She gave evidence that:

• “Don” a Serco officer, advised her and other cleaners that their jobs were advertised and that they had until 6 May to apply. She then applied for the job with Serco.



• The Applicant provided her with no information that her job was coming to an end in May and that she only heard the information in June from the Applicant via a letter dated 5 June, advising her that her employment was coming to an end 8 That letter stated the last day of service at the site was 19 June 2014.



• She attended a meeting with Serco, along with 12 or so other employees where they were briefed about how Serco “run things”



• The remuneration at Serco was around $200 a week less than what she was earning with the Applicant.



• The Applicant did not discuss with her transfer of employment to Serco prior to her receiving her notice of termination from the Applicant.



• Ultimately she was employed by Serco. She accepted the job as she did not have much time to look elsewhere.



• The Applicant did not help her with obtaining employment with Serco.



• When she and other employees approached Ms.Wilson to discuss their concerns having been told their jobs were being advertised they were advised by Ms. Wilson that the Applicant’s tender was in and they were confident of winning it.

Ms. Woodbury

[19] Ms. Woodbury worked at Wickham point detention centre as a cleaner. She gave evidence that:

• She first heard that Serco were employing IFS staff through one of the Serco officers.



• She received no notification from the Applicant that she needed to apply for a new job and believed the Applicant was unaware it was happening.



• She and others approached Ms. Wilson who advised them that it wasn’t happening. She believed Ms. Wilson because, “By her response, she knew nothing about it”



• Applications for the jobs closed on 6 May



• She received a letter on 6 June, dated 5 June, terminating her employment. 9



• She did all the work herself to arrange the new employment with Serco.



• She didn’t accept the job with Serco ultimately because the drop in pay was “humongous” being nearly a $500 dollar a fortnight drop in pay.



• Some weeks after her employment was terminated with the Applicant as a result of the loss of contract with Serco, she worked for the Applicant as a cleaner for one day cleaning defence housing. However, she could not do the work as by the end of the day she had bad sciatica. She informed Ms. Wilson the next day she felt “too old” to do that work.



• She was given paid time off by the Applicant to attend the job interview



• She attended a medical and was given time off for that. However a subsequent medical appointment for a scan was done in her own time. The cost of the scan was paid for by Medicare.



• She believed the job with the Applicant and the pay she was on there was much better than going with Serco.

[20] The Applicant’s submissions included a number of attachments. They include emails from Serco to IFS employees. (For the most part directed to Ms. Wilson) requesting that employees of the Applicant be released to attend interviews or induction training; to confirm names of and contact details for employees and requests to pass on requests for information to the Applicant’s employees that Serco were having trouble making contact with.

[21] Prior to the hearing, a number of emails were received from a number of the affected employees, including a number of affected employees formerly working at Yongah Hill in Western Australia. The emails were in the nature of statements about what occurred when the Applicant’s contract was lost. The employees who provided the statements did not attend the hearing and the statements do not represent sworn evidence. I note that the Applicant was provided with copies of these emails prior to the hearing but they did not make reference to them during the hearing. In any case, I have not relied on the material contained in those emails in reaching a decision in this matter.

[22] However, I note that copies of letters addressed to Ms. Watene and Ms Ramsay, employees of Yongah Hill in Western Australia, were attached to the emails they sent. The letters to Ms. Watene and Ms. Ramsay are almost identical to the terms of the letters provided to staff at Wickham Point. I note that neither letter provides any indication of any other action that the Applicant is taking to obtain employment. Rather it simply reflects that the Applicant understand that staff have been applying for positions with Serco and they have a belief that most staff will be successful in securing a job with Serco.

THE LAW TO BE APPLIED

[23] Sections 119 and 120 of the Act provide as follows:

“119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

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.”

[24] A Full Bench of the Commission recently considered what is meant by the word “obtains” in section 120(1)(b)(i) in Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd 10, an appeal of a decision of Commissioner Gregory, as follows;

“[42] The question of what is required by the word “obtains” was considered by the Full Bench in Derole Nominees. It found:

“The word ‘obtains’ does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.

It follows that ‘obtain’ must be given some lesser meaning. The Shorter Oxford Dictionary (3rd ed revised) provides as its relevant meaning, the definition of ‘obtain’ as ‘to procure or gain, as the result of purpose and effort’. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.” [citations removed]

and

“Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to ‘obtain’ alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.”

[43]In Datacom Vice President Lawler also expressed the view that the word “obtains” in the context of s.120 should be given a very broad interpretation.”[footnotes removed] 11

[25] Commissioner Hampton in Mildren Automotive Pty Ltd 12 also considered what was meant by acceptable alternative employment, as follows:

“[33] It is also well established in this jurisdiction that the concept of acceptable alternative employment is to be determined objectively. As noted by a Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd:

“What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”

[34] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer. In order to establish whether the alternative employment obtained by the employer is acceptable, it is necessary to have regard to such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters (including the location of the employment and travelling time).” 13 [footnotes omitted]

[26] The Full Bench of the Commission in The Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd 14 did not take issue with the approach of Commissioner Gregory who applied the approach in Derole Nominees in reaching his determination as to whether there was acceptable alternative employment.

[27] In The Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd 15, the Full Bench cited with approval the decision of Marshall J in Teletech International;

“[44] In Allman v Teletech International Pty Ltd, Marshall J considered whether Teletech International Pty Ltd (Teletech) had been “able to arrange alternative employment” which appeared in provisions for relief from the obligation to pay redundancy payments within relevant workplace agreement, upon its employees being offered employment by Telstra upon taking over a contract formally held by Teletech. His Honour considered the Full Bench decision in Derole Nominees, finding that “[t]here is no material difference between obtaining alternative employment and being able to arrange it.”

[45] Justice Marshall found that Teletech assisted its employees to apply for jobs with Telstra, had active involvement in the transition of the employees to work with Telstra, met with Telstra to discuss the possible employment of the employees by Telstra and secured a commitment from Telstra that Telstra would give all redundant Teletech employees the opportunity to apply for employment with Telstra. He found:

“Teletech was not, however, a strong moving force towards the creation of the available opportunity. The available opportunity arose because Telstra was to perform functions formerly performed for it by Teletech. Telstra required staff. It made sense for it to approach Teletech staff. Teletech did not secure the offer of a job for Teletech staff with Telstra. As counsel for the applicants submitted, Teletech arranged an opportunity for the employee applicants to participate in a recruitment process undertaken by Telstra.”

[46] Whilst accepting that Teletech brought the employees and Telstra together and that Teletech’s conduct was one of the factors that brought about the employment, Justice Marshall found that it did not mean that Teletech was able to arrange the employment, finding that Teletech facilitated its staff applying for jobs with Telstra, competing on their merits for the available positions. His Honour found that:

“The encouragement and facilitation of a process is not the same as doing everything possible to ensure a result. Arranging alternative employment means bringing about that employment should the employee choose to accept it. Anything short of that, such as competing with competitor applicants (albeit limited to two categories of applicant: existing Telstra and Teletech employees) does not meet the test provided by the relevant sub-clause in the AWAs.” [footnotes omitted]

[28] I will apply the authorities cited above, where relevant, to the facts in this matter

Consideration

[29] It is clear on the evidence that the local managers at the two sites, Ms. Wilson and Mr. Belchamber, only became aware the contract may be coming to an end when they were alerted by employees to the jobs being advertised. At Wickham Point, when Ms. Wilson was approached by staff querying the jobs being advertised, she initially advised them that she was confident they would hold the contract and suggested they go online and see what Serco were paying. After she was approached by a Serco officer advising her they had lost the contract she contacted Mr. DeSilva who took some time to reply. Mr. Bellchamber was advised by some staff that the supervisor and cleaner jobs were advertised on the “Serco portal” and also contacted Mr. DaSilva.

[30] Mr. DaSilva, despite being the contact point for Serco nationally, did not appear to know the contract was lost until Mr. Bellchamber rang him with the news about the jobs being advertised. After getting in touch with Serco he was eventually advised that the service contracts for the Wickham Point and Yongah Hill were coming to an end. These events do not lend support to the claim of Mr. Da Silva that the Applicant had a good working relationship with Serco.

[31] Mr. DaSilva met with Bill Agellis on 12 May 2014 to find out “...what was happening”. 16 Confirmation of the termination was given by Mr. Agellis to Mr. Da Silva that the contract was terminating 24 hours later. However, it was not until 27 May, for Yongah Hill staff and 5 June for Wickham Point that a letter was sent to employees advising them of the loss of contracts. The letters sent provide no information to all employees about what the Applicant had done or was doing to obtain employment for them with Serco.

[32] Indeed, the uncontested evidence was that in the case Wickham Point, the applications for the Serco positions closed on 6 May 2014. By the time the letter was sent to employees the application process had closed. There is no evidence as to when applications closed for the Yongah Hill position. However, as that contract was terminating even earlier than Wickham Point, it is reasonable to infer the recruitment process there was already completed. Ultimately, the letters simply indicate an understanding that many had applied for Serco positions and expressed a belief that many would be successful. There is no evidence of any other written information to staff at all by the Applicant other than the letter of termination.

[33] Mr. Agellis indicated to Mr. Da Silva that Serco would try to recruit the existing IFS staff and it is apparent that Serco did indeed recruit many of the existing staff. The 28 May 2013 email from Mr. DaSilva to Mr. Agellis at attachment H to the Applicant’s submissions was sent four days after his meeting with Mr. Agellis. The email demonstrates the extent of the intervention of Mr. DaSilva with Serco was simply to ask Serco to let them know who they were employing for the purposes of determining whom the Applicant would need to make redundancy payments to.

[34] Mr. Bellchamber’s evidence is that he did not discuss with Serco the positions they were seeking to fill and that it was all done behind his back. Mr. Wilson did not supply a list of staff to Serco, rather it was Serco who supplied her with a list of people who had applied for jobs. However, both Mr. Bellchamber and Ms. Wilson allowed staff paid time off to attend an interview and attend a medical check.

[35] The evidence is that Serco took the initiative in virtually every respect in terms of securing the employment of the employees the subject of these applications. They advised the Applicant that they would attempt to recruit the Applicant’s staff , they supplied the lists of staff to who had applied for jobs to the Applicant and they sought from the Applicant the specific information they wanted such as contact details and other information.

[36] The two staff who gave evidence were clear and consistent in their evidence that they were not assisted by the Applicant to obtain employment, beyond being given time off to attend an interview and medical check. I agree with Mr. Taylor that their evidence shows that they were left to pursue their own actions.

[37] In any case, the applicants own evidence demonstrates that the only real action taken by them and directed to obtaining employment for all of the employees at Yongah Hill and Wickham Point was to give employees some paid time off and to hand over police checks and training documents.

[38] The actions of the Applicant in respect to all the employees the subject of these applications falls way short of that required in Derole Nominees. There is no purpose and effort evident that established an opportunity to suit the employees. Nor can I discern any evidence that goes close to demonstrating that the employer was a strong moving force towards the creation of the available opportunity.

[39] There is then the further matter as to whether the alternative employment in question is acceptable alternative employment. The only evidence I have on that point is from the two Wickham Point employees. Their evidence was that their rates of pay are, or would have been if they accepted employment with Serco, considerably less. There is no evidence as to the other indicia of acceptable alternative employment canvassed in Derole Nominees for these employees or others employed at either of the two sites.

[40] However the onus is on the employer to demonstrate whether the alternative employment was acceptable. 17 Mr. DeSilva confirmed that the Applicant had no knowledge as to what the rates of pay and conditions of employment were to be in either Western Australia or the Northern Territory. Mr. Bellchamber and Ms. Wilson did not know what Serco were paying and Ms. Wilson did not know if Serco was going to honour any of the entitlements of any of the staff at all. Put simply, there is no evidence to demonstrate the alternative employment is acceptable. The only evidence I have lends support for a finding that it is not. Accordingly I am not satisfied the alternative employment was acceptable.

Ms. Woodbury

[41] A submission was made by the Applicant on the day of the hearing that Ms. Woodbury actually accepted to stay employed with the Applicant but only did so for one day because the work was too hard for her and that she resigned her employment. I have taken this to mean, though it was not made clear by the Applicant that on that basis that Ms. Woodbury was not entitled to a payment for redundancy. If that is the point of the Applicants’ submission, then the argument is spurious. Exhibit T2 to the proceedings clearly evidences that Ms Woodbury was terminated on 6 June 2014 by IFS. Some weeks later she undertook a different job for the Applicant at a different site some weeks after her employment was terminated 6 June 2014. She worked in that role for one day and then resigned. While she effectively resigned from that position, on the uncontested evidence this was a new employment contract with the Applicant. The Applicant cannot rely on one day of work performed for them some weeks after she was made redundant as a basis for claiming that she is not entitled to a redundancy payment. She was already redundant by virtue of the letter provided as exhibit T2.

[42] I note in passing that I have a concern about the evidence of Ms. Wilson that staff of the Applicant were told they needed to resign in order to be paid their entitlements in circumstances where it is clear on the evidence that the employer was clearly terminating the employment. In the circumstances employees who were made redundant were entitled to be paid their entitlements whether or not they resigned. If they were advised to the contrary the advice given to them was wrong and misleading.

Conclusion

[43] I note that the Applicant on the day of the hearing sought to amend the list of employees the subject of the applications to delete the names of a number of employees as they had left Australia and already been paid redundancy. However, given my decision in this matter, there is no need to amend the applications as neither the original or amended applications have been granted.

[44] For the reasons given I have found that the Applicant did not obtain acceptable employment for the affected employees and, as a result, the jurisdictional basis for the making of orders under section 120 of the Act within s.120(b)(i) has not been established. The applications by the Applicant for orders under section 120 of the Act are dismissed.

[45] It follows that the employees are entitled to be paid the redundancy pay to which they are entitled under s119 of the Act without reduction.

COMMISSIONER

Appearances:

A Seward of the Applicant

B Taylor on behalf of affected employees Ms Whakaue and Ms Woodbury

Hearing details:

2014.

Melbourne, Sydney and Perth (video hearing):

December 16

 1   PN250-255

 2   PN270-271

 3   PN114

 4   PN143

 5   PN151

 6   PN165-169

 7   PN202

 8   Exhibit T1

 9   Exhibit T2

 10   The Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd, [2014] FWCFB 6737

 11   The Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd, [2014] FWCFB 6737, [42] - [43]

 12   [2013] FWC 2113

 13   Mildren Automotive Pty Ltd, [2013] FWC 2113, [33] - [34]

 14   [2014] FWCFB 6737

 15   [2014] FWCFB 6737

 16   PN233

 17   Australian Chamber of Manufacturers v Derole Nominees Pty Ltd, Print J4414; Re Clothing Trades Award 1982(1), (1990) 140 IR 123.

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