Juliyana Mirceska v GJK Facility Services

[2018] FWC 7633

[2018] FWC 7633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Juliyana Mirceska
v
GJK Facility Services
(C2018/5825)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 DECEMBER 2018

Dispute about a matter arising under an enterprise agreement.

[1] On 18 October 2018, Ms Juliyana Mirceska filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute. Ms Mirceska brought the application pursuant to clause 10 of the Cleaning Services Award 2010 (the Award).

[2] Ms Mirceska had worked for GJK Facility Services (GJK) as a cleaner, on a full-time basis, at the Qantas Maintenance base at Tullamarine for approximately five years. Ms Mirceska says that on 13 August 2018, GJK was notified it would no longer continue servicing a Qantas contract after 13 September 2018. She said she was notified her employment would cease from 13 September 2018.

[3] This dispute relates to the redundancy clause in the Award. An offer of employment has been made by GJK to Ms Mirceska, however she asserts, pursuant to clause 14.5(c) of the Award, that s.119 of the Act applies to her (an entitlement to redundancy pay) because she has not been offered acceptable employment with either GJK or the incoming contractor.

[4] The dispute was the subject of conferences on 29 October and 9 November 2018, however the matter could not be resolved.

[5] On 27 November 2018, directions were issued for the filing of material. Ms Mirceska was directed to file material in support of her contention that the offer made by GJK is not acceptable employment by 4.00pm on 4 December 2018. GJK was directed to file its material in reply by 4.00pm on 11 December 2018.

The Award and the Act

[6] Clause 14.5(c) of the Award provides:

“To avoid doubt, section 119 of the Act [Fair Work Act 2009 (Cth)] does apply to an employee of an outgoing contractor where the employee is not offered acceptable employment with either the outgoing contractor or the incoming contractor.”

[7] Section 119 of the Act provides:

“(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.”

Ms Mirceska’s submissions

[8] Ms Mirceska previously performed her full-time role at the Qantas Maintenance base at Tullamarine. Ms Mirceska worked Monday to Friday and her hours were 6.30am to 2.30pm.

[9] Ms Mirceska was offered casual employment by the incoming contractor at Tullamarine airport, with no provision for full-time employment. Ms Mirceska did not accept this offer of employment.

[10] GJK subsequently offered Ms Mirceska a full-time cleaning position at RMIT – City Campus (22 Cardigan Street, Carlton) (RMIT), which she has declined. The hours offered to Ms Mirceska were Monday to Friday from 6.00am to 2.00pm. Ms Mirceska said these hours do not suit her as she would be required to leave very early in the morning to get to RMIT and start at 6.00am and she would have to leave her children home alone until someone can come and stay with them.

[11] Ms Mirceska said there are also extra costs associated with the role offered, including increased petrol and parking expenses. She said parking would cost her approximately $450 per month, whereas in her previous role she was not required to pay for parking. Ms Mirceska also said she would be travelling an extra 456 kilometres per month and estimated she would be out of pocket approximately $150 extra in fuel, possibly more. Ms Mirceska asserted there would also be sundry expenses for wear and tear on tyres and the servicing of her car due to the additional kilometres she would need to travel. Ms Mirceska therefore estimated she would be out of pocket in the approximate amount of $700 per month.

GJK’s submissions

[12] GJK submitted the following as to the difference in kilometres between Ms Mirceska’s former work place, RMIT, her home and the location of her children’s school:

•  Home to former work place (Melbourne Airport) is 19-22 kilometres and around 24 minutes in travel time;

o Ms Mirceska asserts the distance is 17.4 kilometres and the travel time was 23 minutes.

•  Home to RMIT is 20-30 kilometres and around 30 minutes travel time;

o Ms Mirceska asserts the distance is 30.5 kilometres, which equates to an additional 26.2 kilometres each day, and the travel time would be 35 minutes.

•  Melbourne Airport to her children’s school is 13-17 kilometres and around 17-20 minutes of travel time; and

o Ms Mirceska asserts the distance is 12.3 kilometres and the travel time was 16 minutes.

•  RMIT to Ms Mirceska’s children’s school is 22-30 kilometres and around 30-35 minutes in travel time.

o Ms Mirceska asserts the distance is 23.9 kilometres, which equates to an extra 11.6 kilometres each day, and the travel time would be 35 minutes.

[13] GJK contends the difference in distance and travel time from Ms Mirceska’s home and the former work place and RMIT is respectively eight kilometres and around six minutes. It contends the difference in distance and travel time from Ms Mirceska’s former workplace and RMIT and the location of her children’s school is around 13 kilometres and 15 minutes. GJK asserts the additional travel is reasonable when offering redeployment to an employee and further that it has and will continue to offer alternative start/finish times to assist in the redeployment of Ms Mirceska.

[14] As to Ms Mirceska’s contention that the position at RMIT would incur additional depreciation and petrol costs on her vehicle, GJK submit while this may be true, the difference in total kilometres offered to Ms Mirceska is 21 kilometres per day, including the collection of her children. GJK submits this is a reasonable number of additional kilometres given Ms Mirceska is maintaining ‘like for like’ full-time employment. It submits using the petrol cost calculator, it anticipates this to cost an additional $3.00-$4.00 in petrol per day.

[15] GJK did not make any submissions regarding the parking costs.

[16] GJK contends it has taken all reasonable steps in order to accommodate Ms Mirceska’s circumstances and offered her reasonable alternative employment following its loss of the Qantas contract. It submits the offer meets the criteria in that it is:

•  Like for like full-time employment;

•  Like for like in the start/finish times; and

•  A reasonable change in distance between Ms Mirceska’s former work place and RMIT to both her residence and the location of her children.

[17] GJK submit if the requirement for Ms Mirceska is that a suitable alternative offer needs to be directly in the Tullamarine area, as it asserts Ms Mirceska has alluded to previously, it would be unreasonable to assume that this could be achieved given the limited access to contracts in that area. Given the circumstances in which GJK has found itself, it asserts it has taken all reasonable steps to ensure Ms Mirceska has been made a fair and reasonable offer of employment.

Consideration

[18] I must determine whether GJK’s offer of employment at the RMIT location is ‘acceptable employment.’ If I find it is not acceptable employment, s.119 of the Act will apply to Ms Mirceska and she will be entitled to redundancy pay.

[19] The term ‘acceptable employment’ is also found in s.120(1)(b)(i) of the Act. A Full Bench of the Commission has provided the following guidance in relation to s.120(1)(b)(i) of the Act: 1

“[37] In relation to s.120(1)(b)(i), whether alternative employment obtained by the employer is “acceptable” is to be determined objectively, not by reference to whether the employment is subjectively acceptable to the employee. 2 The determination of whether alternative employment is acceptable requires an assessment and value judgment on the part of the decision-maker.”3

[20] Further, in Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd, the Full Bench stated:

“…the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters.” 4

[21] Ms Mirceska has been offered full-time hours at the rate of pay she was previously receiving. I accept she would have additional travel if she was to accept the position at RMIT. I do not consider this of itself is unacceptable, based on what the parties have submitted.

[22] I am also not persuaded that the claimed expenses for possible, increased wear and tear on tyres and additional servicing of Ms Mirceska’s motor vehicle are factors that weigh against the position at RMIT being ‘acceptable employment’.

[23] I consider the earlier starting time of 6.00am weighs slightly in favour of a finding that the position at RMIT is not ‘acceptable employment’ because even though it is only 30 minutes, that period of time at that hour of the morning represents a material difference when it comes to making childcare arrangements.

[24] Ultimately however, it is the combination of the parking expenses and additional petrol that leads me to conclude that the offer of employment at RMIT that GJK has made Ms Mirceska is not acceptable employment. I calculate the $450 monthly parking expense equates to a weekly expense of approximately $103.00 and the estimated additional daily petrol expenses averaged at $3.50 per day 5 equates to an additional expense of $17.50 per week, resulting in additional weekly expenses for Ms Mirceska totalling approximately $121.00 per week.

[25]
In circumstances where Ms Mirceska is earning the Award rate of pay for cleaning, these additional expenses persuade me that she has not been offered ‘acceptable employment’. Given this, and in the absence of an offer of ‘acceptable employment’ from the incoming contractor at Tullamarine Airport, I determine that s.119 of the Act applies to Ms Mirceska and she is entitled to be paid redundancy pay by GJK.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Australian Commercial Catering Pty Ltd v Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[2016] FWCFB 5467.

 2   Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226; Clothing Trades Award 1982(1) [1990] AIRC 980; (1990) 140 IR 123.

 3 [2015] FCAFC 189 at [45].

 4 (1988) 27 IR 226 (Munro and Peterson JJ, Leary C) at 230-231.

 5   The midpoint of what GJK submitted could be anticipated.