Jeffrey Webster v Briars at Greenlees Pty Limited

[2021] FWC 6133

[2021] FWC 6133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Webster
v
Briars at Greenlees Pty Limited
(U2021/6314)

DEPUTY PRESIDENT BOYCE SYDNEY, 28 OCTOBER 2021

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

Introduction

[1] Mr Jeffrey Webster (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with Briars at Greenlees Pty Limited (Respondent / Briars Sports Club) on 2 July 2021, and that his dismissal was “unfair” within the meaning of s.385 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, Briars Sports Club asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and that the Applicant is therefore not a person protected from unfair dismissal (s.385(d) of the Act).

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application. Mr Sam Ingui, Solicitor, appeared with permission for the Applicant. Ms Nicola Shaw, Legal Counsel – Workplace Relations, of the Registered Clubs Association of NSW, appeared for Briars Sports Club. Following the hearing, written closing submissions from both parties were filed.

The parties

[4] Briars Sports Club is a not-for-profit registered and licensed sports club, with around 3,700 members, 1 located in Concord, New South Wales. It holds a stated purpose to “promote community sports”.2 Any surplus (operating profit) from the Respondent’s activities is used towards improvements to the Club; improved, discounted or expanded services to Club members; and/or provided (donated) to chosen community and/or amateur sporting organisations, activities or causes (including charitable causes).3

[5] The Applicant commenced employment with Briars Sports Club on 4 August 2007. He was dismissed by way of letter dated 2 July 2021, titled “Termination due to redundancy”. 4 During his employment with Briars Sports Club, the Applicant was engaged as full time a Club Supervisor/Duty Manager.5 Upon his dismissal, the Applicant was paid 12 weeks redundancy/severance, 4 weeks’ notice in lieu, along with accrued annual and long service leave entitlements.6

[6] There is no dispute between the parties that the Registered and Licensed Clubs Award 2020 (Award) covered and applied to the Applicant’s employment with Briars Sports Club at the time of his dismissal.

Evidence

[7] Briars Sports Club tendered the following witness statements into evidence:

(a) Witness Statement of Mr Jason Parle, dated 23 August 2021;

(b) Witness Statement of Ms Jacinta Nicholl, undated (filed 23 August 2021);

(c) Witness Statement of Mr Jason Parle in reply, undated (filed 13 September 2021); and

(d) Witness Statement of Ms Jacinta Nicholl in reply, dated 10 September 2021.

[8] The Applicant tendered the following witness statement into evidence:

(a) Witness Statement of Mr Jeffrey Webster, dated 6 September 2021.

Relevant law

[9] Section 385 of the Act qualifies a claim for unfair dismissal:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[10] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of “genuine redundancy”:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[11] Section 389 provides the statutory definition as to what qualifies as a “genuine redundancy”:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer”.

[12] In view of s.389 of the Act, and for the Commission to be satisfied that a dismissal was a case of genuine redundancy, there are three questions that need to be answered:

(a) Was the employee’s job no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise?

(b) Did the employer comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

(c) Would it have been reasonable in all the circumstances for the employee to have been redeployed within the employer’s enterprise, or an associated entity of the employer?

Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Briars Sports Club enterprise?

[13] Sub-section 389(1)(a) of the Act provides that a person’s dismissal was a case of genuine redundancy if the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[14] These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy. 7 The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise:

a machine is now available to do the job performed by the employee;

the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists”.

[15] Further, it has been held that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. In this regard:

“what is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant”. 8

[16] Put another way, the test is not whether the employee’s duties or some of his/her hours of work survive. The test is whether the job previously performed by the employee still exists. 9

[17] In their evidence, Mr Parle and Ms Nicholl put forward a number of reasons as to why the Respondent needed or otherwise wanted to restructure, or make organisational changes to, its business.

[18] Firstly, the Respondent’s surplus for the financial year ending September 2021 was going to be around $200,000, being $400,000 less than its original projected surplus of $600,000. 10

[19] Secondly, whilst the Respondent had traded strongly up to the start of the 2021 lockdowns arising from the COVID-19 pandemic, without the assistance of the Federal Government’s JobKeeper payments, the on-going viability of the business would have been extremely tough. 11 The COVID-19 pandemic, along with the lockdowns associated with same, and/or the potential for snap lockdowns into the future, created much uncertainty for Briars Sports Club going forward.12

[20] Thirdly, as a result of the potential for lockdowns arising from the COVID-19 pandemic, during 2021 Mr Parle was constantly reviewing the Respondent’s revenue, expenditure and projected surplus so as to plan for the club’s future; sustain its financial viability; and ensure that the club was operating as efficiently as possible. 13 In conjunction with Ms Nicholl, Mr Parle identified rostering inefficiencies, inflexibilities, and excesses.14

[21] Fourthly, in or about March/April 2021, trade at the club became quieter around 9.00pm, with the club closing early (30 to 60 minutes) a few times a week. Despite closing early, full time employees, such as the Applicant, still needed to be paid their full-time hours. Further, there were two supervisors rostered on during most afternoons and nights, when it appeared that the club could get by with only one supervisor on some afternoons and evenings. By changing rosters, and reducing rostered hours, it was apparent that the club could save up to 28 hours each week, reduce costs, and cut down what was considered to be a top-heavy classification structure. 15

[22] Having regard to the evidence (as summarised at paragraphs [18] to [21] above), which was not challenged in any substantive sense during the hearing, 16 I find that in all the circumstances, Briars Sports Club had genuine “operational requirements” that gave rise to it needing or otherwise wanting to make changes to its business and operations.17 These include issues of inconsistent trade, uncertainty arising from COVID-19 lockdowns, a top-heavy classification structure, unrequired working hours, rostering inefficiency and inflexibility, and cost.

[23] The change that Mr Parle made, on behalf of Briars Sports Club, and supported by the Board of Directors, was to make the Applicant’s role as full time Club Supervisor/Duty Manager redundant. I find that this decision by Briars Sports Club, at the time it was made, based upon the evidence of Mr Parle and Ms Nicholls, was grounded upon the fact that the club did not require the Applicant’s job to be performed by anyone. Further, having regard to the organisational structure of the business, 18 and based upon the evidence as to the reasons for change (based upon operational requirements),19 I find that this decision to abolish the Applicant’s role was made by Briars Sports Club in good faith. Having made this finding, I point out that it is not the Commission’s role to engage in an investigation or analysis as to whether Briars Sports Club made the right, or most appropriate, decision to abolish the Applicant’s role. In other words, managerial decisions, made in good faith, for operational reasons, as to the manner in which Briars Sports Club seeks to conduct its business and manage its affairs, are decisions for Briars Sports Club to make.20

[24] Again, I stress that it is not to the point that the Applicant’s duties still exist, and were otherwise redistributed to other employees, or that some of his working hours were given to other employees on the roster. Rather, the question to be answered is whether the Applicant’s role (or job) still exists, not whether his duties, or some of his working hours, continue to exist and are performed by others.

[25] Having regard to my reasons, as set out in paragraphs [13] to [24] above, I find that Briars Sports Club has satisfied s.389(1)(a) of the Act.

Did Briars Sports Club comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

[26] The parties accept that the Applicant was covered by the Registered and Licensed Clubs Award 2020 (Award).

[27] Clause 32 of the Award, “Consultation about major workplace change” (Consultation Clause), reads:

“32. Consultation about major workplace change

32.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

32.2 For the purposes of the discussion under clause 32.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

32.3 Clause 32.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

32.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 32.1(b).

32.5 In clause 32 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

32.6 Where this award makes provision for alteration of any of the matters defined at clause 32.5, such alteration is taken not to have significant effect.”

[28] The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the section “is not made out unless the various requirements of the relevant consultation clause are demonstrably discharged by the employer”. 21 However, before making any such finding, I must first determine whether the “obligations” under the Consultation Clause applied to the Applicant’s redundancy.

[29] There is no doubt that Briars Sports Club made a “definite decision” to make “changes” to its organisational structure that were likely to have a significant effect upon the Applicant. But two issues remain in order to determine whether or not the obligations under the Consultation Clause applied to the Applicant’s redundancy. Firstly, whether the change that was made was a “major” change, and secondly, whether the change that was made was likely to have “significant effects on employees” (i.e. as opposed to just the Applicant as a singular ‘employee’).

[30] In my view, the decision to make the Applicant’s position redundant was not a “major” change. Nor was it a change that had significant effects on employees beyond the Applicant. In this regard:

(a) There is a distinction between a “major change” and a change which has “significant effects”.

(b) A change is not “major” only because it results in a dismissal by reason of redundancy. 22

(c) Whilst a change may be “major”, or have “significant effects on other employees”, because of the number of redundancy-related dismissals concerned, that was not the case here, where only the Applicant’s role was abolished, and the Applicant was the only employee made redundant. 23

(d) While a change may be “major” because of the effects it has on employees beyond those directly affected in the sense of their jobs becoming redundant, 24 in this case, there is no evidence that the work of other employees of Briars Sports Club continued in any substantially different respect to that which such relevant remaining employees previously worked.

[31] The foregoing principles, and findings of fact, mean that as a matter of law, I am unable to find that the obligations under the Consultation Clause applied to the Applicant’s redundancy. Indeed, to make a finding otherwise would be to erroneously depart from the decision of the Full Court of the Federal Court in Port Kembla Coal Terminal Pty Ltd v Construction, Forestry, Mining and Energy Union, 25 being a decision that I am bound to follow as a Member of the Commission.

[32] Having regard to my reasons, as set out in paragraphs [26] to [31] above, I find that Briars Sports Club was not required to comply with the Consultative Clause under the Award, and in that sense, the club has satisfied s.389(1)(b) of the Act.

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

[33] Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or an associated entity of the employer.

[34] In my view, the correct interpretation of subsection 389(2) remains as stated in Ulan Coal Mines Limited v A. Honeysett & Ors (Ulan Coal): 26

“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

…

[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.

(emphasis added)

[35] It is not for the Commission to speculate as to what redeployment roles should have been discovered by an employer, or what roles may have been available for the Applicant to be redeployed into. Indeed, questions of redeployment under s.389 of the Act are based upon available evidence. In other words, the role of the Commission is to identify from the evidence a job, position or work an employee could have done, assessed at the time of his/her dismissal. 27

[36] The evidence is that the only role available to redeploy the Applicant into was a casual Level 3 Food and Beverage Gaming Attendant role. 28 This role was offered to the Applicant on 11 June 2021, and 2 July 2021, however, the Applicant did not take up the offer.29

[37] The Applicant’s own evidence does not identify a suitable available alternative role that he could be redeployed into, 30 other than to imply that another Level 5 employee (Kim Williams) should have been selected for redundancy as he could do her role.31 However, as was said in Boyan Bizoev v NODE Energy Service Pty Ltd T/A NODE Energy Service:32

“… in relation to changes in the operational requirements of an employer’s enterprise or business, such changes include reasons of economic, technological, structural or similar change, to all or any part/s of a business. In other words, an employer need not be losing money or running at a loss in order for it to be in a position to make changes in its operational requirements or its business. Once an employer is able to establish that it has bona fide reasons that it (as the employer) considers require changes to its business, it is not for an employee, or the Commission, to further inquire or engage in an analysis as to whether such changes were appropriate, logical, reasonable or necessary. Nor is it the role of the Commission to determine whether a relevant employee was or was not fairly or appropriately chosen, or otherwise selected, for redundancy. Just like the owner of a property can make changes or alterations to his or her house, that in his or her opinion are appropriate or required, an employer can also make changes to its operations or business, that in its opinion are appropriate or required.” 33

[38] Having regard to the foregoing evidence, I am satisfied that Briars Sports Club met its evidentiary onus to canvass the availability of other suitable jobs or roles which could be performed by the Applicant. I am equally satisfied that there is no basis to find that there was a suitable job or position available for the Applicant to be redeployed into at the time he was made redundant. It follows that Briars Sports Club has met its obligations as to redeployment under s.389(2) of the Act in that I find that it would not have been reasonable in all the circumstances for the Applicant to have been redeployed within the club’s enterprise. 34

Summary of findings

[39] Having regard to the evidence and submissions of the parties, I have made the following findings:

(a) As at the time that Briars Sports Club made the decision to dismiss the Applicant, the Applicant’s job was genuinely no longer required to be performed by anyone because of changes in the operational requirements of the Briars Sports Club enterprise (s.389(1)(a) of the Act).

(b) The Consultation Clause under the Award did not apply to the Applicant’s redundancy, hence there is no issue as to whether or not Briars Sports Club complied with same when making the Applicant redundant (s.389(1)(b) of the Act).

(c) As at the time that Briars Sports Club made a decision to dismiss the Applicant for reasons of redundancy, there were no available or suitable positions at Briars Sports Club that the Applicant could have reasonably (in all the circumstances) been redeployed into (s.389(2) of the Act).

Conclusion

[40] On the basis of my findings, I conclude that the Applicant’s dismissal was a case “genuine redundancy” within the meaning of s.389 of the Act. It follows that the Commission has no jurisdiction to hear or determine the Applicant’s unfair dismissal claim. The Application filed by the Applicant on 19 July 2021 is to be dismissed by way of Order issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr Sam Ingui, Solicitor, for the Applicant

Ms Nicola Shaw, Legal Counsel – Workplace Relations, Registered Clubs Association of NSW, for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR734912>

 1   Exhibit R1, Parle Statement, 23 August 2021, at [14]-[15].

 2   Ibid at [20]-[22].

 3   Ibid, Annexure ‘A’ (Court Book pp.62-210). Transcript, PN316-PN317.

 4   Exhibit R1, Parle Statement, 23 August 2021, Annexure ‘Q’ (Court Book pp.249-250).

 5   Schedule A, Classification A.12.2 under the Registered and Licensed Clubs Award 2020. See also Schedule B, Item B.2.1, Level 5 for modern award rate of pay.

 6   Exhibit R1, Parle Statement, 23 August 2021, Annexure ‘Q’ (Court Book p.251).

 7   Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.

 8   Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]-[44] (Spender, Dowsett, and Allsop JJ).

 9   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 (Hamberger SDP), at [27].

 10   Transcript, PN104-PN106.

 11   Exhibit R1, Parle Statement, 23 August 2021, at [17]-[18].

 12 Note also Exhibit A2, Applicant Statement, 6 September 2021, at Annexures ‘JW-2’ and ‘JW-3’. Exhibit R2, Parle Reply Statement, filed 13 September 2021, at [25].

 13 Exhibit R1, Parle Statement, 23 August 2021, at [10].

 14 The Applicant acknowledges a surplus of supervisory hours post the employment of Ms Nicholl: Exhibit A2, Applicant Statement, 6 September 2021, at [32].

 15 Exhibit R3, Nicholl Statement, 23 August 2021, at [16]-[23]. This was contested by the Applicant (Exhibit A2, Applicant Statement, 6 September 2021, at [21], [28], [30], [63], and [66]-[67]). Exhibit R2, Parle Reply Statement, filed 13 September 2021, at [2]-[6], [12]-[13], [19], [26]-[27], [30], [34], and [36]. Exhibit R4, Nicholl Reply Statement, 10 September 2021, at [8], [14]-[21], [27].

 16   Transcript, PN182-PN198.

 17   Nettlefold v Kym Stoker Pty Ltd (1996) 69 IR 370, at 373; Tasmania Development and Resources v Martin (2000) 97 IR 66, at 71-73; Bunnett v Henderson’s Federal Spring Works Pty Ltd (1989) AILR 356.

 18   Exhibit R1, Parle Statement, 23 August 2021, Annexure ‘G’.

 19   See paragraphs [17] to [22] of this decision.

 20   Boyan Bizoev v NODE Energy Service Pty Ltd T/A NODE Energy Service[2021] FWC 5251, at [15]. Also noting what the Applicant says about club practice, security, and risk: Exhibit A2, Applicant Statement, 6 September 2021, at [22].

 21   Maxwell v Bardrill Corporation Ltd[2015] FWC 4019 at [40]-[41]. As to the the principles underlining “consultation”, see Gourdeas v Heyday 5 Pty Limited[2020] FWC 6132 at [28]; Maswan v Escada[2011] FWA 4239 at [19]-[20]; TCR Case (1984) 8 IR 34; (1984) 9 IR 115.

 22   Port Kembla Coal Terminal Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, at [187] per Jessup J, see also at [499] per White J; Australian Nursing and Midwifery Federation v Bupa Aged Care Pty Ltd [2017] FCA 1246.

 23   Ibid. Exhibit R1, Parle Statement, 23 August 2021, at [16] (i.e. the Applicant was one of fifteen/sixteen employees at the time he was made redundant).

 24   Port Kembla Coal Terminal Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, at [187] per Jessup J, see also at [499] per White J; Australian Nursing and Midwifery Federation v Bupa Aged Care Pty Ltd [2017] FCA 1246.

 25 [2016] FCAFC 99.

 26   [2010] FWAFB 3488. See also Technical and Further Education Commission v Pykett[2014] FWCFB 714, 240 IR 130, at [34], [36], [38]-[40].

 27   Technical and Further Education Commission v Pykett[2014] FWCFB 714, 240 IR 130, at [24], [35], and [36]; Teterin v Resource Pacific Pty Ltd[2014] FWCFB 4125, 244 IR 252, at [25], [26], [32(1)] and [32(2)]; Crema v Abigroup Contractors Pty Ltd[2012] FWA 5322, at [81]; Jain v Infosys Ltd[2014] FWCFB 5595, at [35].

 28   Exhibit R2, Parle Reply Statement, filed 13 September 2021, at [2]-[6].

 29   Exhibit R1, Parle Statement, 23 August 2021, at [59]-[60].

 30   Exhibit A2, Applicant Statement, 6 September 2021, at [25]-[26]. Transcript, PN643-PN645, PN662.

 31 Exhibit A2, Applicant Statement, 6 September 2021, at [39].

 32   [2021] FWC 5251.

 33 Ibid, at [15].

 34   There is no suggestion that Briars Sports Club has any associated entities for the purposes of redeployment considerations.