[2020] FWC 1868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Kim McRae
v
Greyhound Australia t/a Greyhound Australia Pty Ltd
(U2019/8873)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 APRIL 2020

Application for an unfair dismissal remedy – bus driver with seven years’ service on a major new construction project – demobilisation of construction site – progressive reduction in contract services, including employee bus transport – demobilisation process and procedure for selection under Agreement – terms of contract of employment and Agreement – last on/first off during demobilisation process – selection criteria – applicant contests selection procedure – workplace right to lodge underpayment claim – claim withdrawn – applicant’s qualifications taken into account – alternative jurisdictional objections – employment for a specified task – employee not dismissed at employer’s initiative – case of genuine redundancy – principles considered – genuine redundancy objection made out – unnecessary to determine other jurisdictional objections – no jurisdiction – application dismissed.

BACKGROUND

[1] Ms Kim McRae commenced employment on 9 July 2012, for Greyhound Australia Pty Ltd (‘Greyhound’ or the ‘Company’) at the Wheatstone Project site, 12 kilometres west of Onslow, Western Australia. Greyhound provides bus and transportation services to the Wheatstone LNG Project (the ‘Project’) for the site’s operator, Chevron Australia, through its client, Downer EOI Engineering Pty Ltd (‘Downer’), the Head Contractor for the management of all contractors onsite, including Greyhound. At its peak, the construction workforce on the Project numbered approximately 7,600 workers. The construction phase has now been largely completed, and as the workforce has been significantly reduced, the requirement for transport services has similarly been reduced, from its peak of around 70-80 buses and 130 drivers to 21 drivers. All services provided by Greyhound ceased on 3 March 2020 as the Company was unsuccessful in bidding for an ongoing contract at the site.

[2] Greyhound’s employees work on a construction roster four weeks on/one week off fly-in/fly-out basis. Pursuant to an enterprise agreement negotiated with the Transport Workers’ Union, the Greyhound Australia Pty Ltd Wheatstone Project Agreement 2013 (the ‘Agreement’), Ms McRae was offered and accepted full-time employment at the site from 1 June 2015. Ms McRae’s employment was covered by the letter of offer and the Agreement. Clause 7 of the Agreement deals with the terms of employment of Greyhound’s employees engaged on the Project and provides that:

‘7. TERM OF EMPLOYMENT

7.1 Your employment starts on the first day you commence work on the Wheatstone Project as detailed in your letter of offer.

7.2 Your employment will cease when:

(a) your employment ends in accordance with this Agreement;

(b) your employment ends due to the ordinary and customary turnover of labour;

(d) the Wheatstone Project comes to an end for any reason, whichever is the earlier.

7.3 For the avoidance of doubt, if your employment ends as a result of clause 7.2 (b), (c) or (d) or you are a Casual Employee you will not be entitled to notice, payment in lieu of notice or any other additional payments.’

[3] To similar effect, Cl 9.6 of the Agreement provides that:

‘9.6 Termination without notice

Greyhound will not be required to provide you with any notice or termination or payment in lieu where your employment:

(a) is terminated because of serious misconduct; or

(b) ceases at the conclusion of a specified task or term.’

Clause 11 of the Agreement outlines the process to be followed for implementing the demobilisation of Greyhound’s employees as the Project comes to an end. It reads as follows:

‘11. DEMOBILISATION

11.1 Should Greyhound be demobilised or partially demobilised from the Wheatstone Project, selection of Employees to cease employment will be based on retention of the Employees who, in Greyhound's opinion, will best ensure that Greyhound is able to perform its ongoing work. The primary selection criteria will be:

(a) historical job performance;

(b) qualifications;

(d) experience.

11.2 In assessing historical job performance, Greyhound may review disciplinary action administered within the previous 12 month period but not longer than that.

11.3 If Greyhound is unable to distinguish between two (2) or more employees based on the criteria in 11.1, Greyhound will give preference to retention of the employees with the longest service.’

[4] Ms McRae’s employment came to an end on 31 July 2019. On 10 August 2019, Ms McRae (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), claiming she was unfairly dismissed and seeking compensation as a remedy for her dismissal. It was the applicant’s view that as she was the employee with the longest service, other employees with lesser service should have been terminated before her in accordance with Cl 11 of the Agreement. Greyhound accepted the applicant had seven years of continuous service. However, in its Form F3, Greyhound raised two jurisdictional objections to her application for an unfair dismissal remedy; namely:

1. the applicant was employed under a contract of employment for a specified task, pursuant to the exemption in s 386(2) of the Act; and

2. the applicant was not dismissed at the initiative of the employer, as a jurisdictional requirement for there to have been a dismissal under s 386(1) of the Act.

A third objection was added in written submissions; see: [49] to follow.

[5] After unsuccessful conciliation before a Commission Conciliator on 30 September 2019, the matter was remitted to me for hearing to assist in case management issues in Western Australia. In accordance with my usual practice, I convened a telephone conciliation on 25 November 2019 to discuss settlement of the claim. This proved unsuccessful and the matter was listed for hearing in Perth on 5 February 2020. The applicant appeared for herself assisted by a support person, Ms A Anderson. Greyhound was represented by Mr G Giorgi, Senior Associate, and Ms R Lee, Solicitor, for Herbert Smith Freehills, with permission being granted for it to be represented by a lawyer, pursuant to s 596 of the Act, noting the applicant did not object to Greyhound being legally represented.

THE EVIDENCE

[6] The following persons provided statement evidence in the proceeding:

• Mr David Pope – Health Safety Environment Training (‘HSET’) Advisor

• Ms Lisa Anne Strandberg – General Manager, People and Culture

• Ms Sarah Miriam Ismail – Project Manager

• Mr Ben Gokel – Senior Planner/Scheduler

• Ms Kim McRae – applicant.

Only Mr Pope and the applicant were required for cross examination.

For Greyhound (as the objector)

Mr David Pope

[7] Mr Pope commenced employment on the Project in June 2014 as a driver. In his current role as HSET Advisor, he is responsible for:

• driver training;

• updates to employees on safety issues;

• incident investigations;

• risk assessments; and

• health and safety reporting.

In his role, Mr Pope had regular interaction with the applicant through weekly Toolbox meetings, pre-start meetings and general day-to-day conversations. It was Mr Pope’s evidence that employees were regularly informed at Toolbox meetings of ‘demobilisation rounds’ (usually every four months) which commenced about a year before the applicant’s demobilisation. Drivers were told of the number of buses that the client had decided to demobilise and the timing of the demobilisation. Each driver had access to the Toolbox meetings’ PowerPoint presentations through their phone which also included information on rosters, site notices and pre-start information. All drivers were encouraged to access the information.

[8] Mr Pope described the process of selecting employees for demobilisation under the terms of Cl 11 of the Agreement. He believed the Agreement gives Greyhound the discretion to select the best people to retain on the Project. This is done through a management Demobilisation Committee, which Mr Pope had been a member of in the last 4-5 demobilisation rounds since March 2018, including the meeting on 5 July 2019, in respect to the applicant’s demobilisation. The meeting was attended by Ms Ismail, Mr Gokel, Mr Chris Aitken (another HSET Advisor) and Mr Adam Worcester (Operations Supervisor). The client had directed that from 21 drivers, 4 would be demobilised. Mr Pope stated that at the time, due to the Project winddowns, and as Greyhound had no other project on track in Western Australia, there were no alternative employment opportunities for the four drivers selected for demobilisation in July 2019.

[9] Mr Pope said that because there had been previous demobilisations, where all drivers had been assessed, this had resulted in the remaining 21 drivers being regarded as high performing employees. The Demobilisation Committee worked from a spreadsheet of all employees, based on the following criteria:

‘(a) Job performance, broken into categories of:

(i) Rating of disciplines.

(ii) Safety conscientious.

(iii) Team work.

(iv) Operational knowledge.

(v) Ability to work without supervision.

(vi) Attitude.

(b) Qualifications, broken into categories of:

(i) Any relevant qualifications held, including those undergoing training for new qualifications.

(ii) Heavy Rigid Licence (HR Licence).

role.

(d) Experience, including among other things, length of service [with] Greyhound.’ (bold in emphasis)

[10] Mr Pope said the applicant scored 25 – the lowest of the group of 21 drivers. Nevertheless, he understood that while the applicant was a good driver (obviously being one of the remaining 21 out of 130 drivers), the Committee looked at whether the applicant was proactive in:

‘(i) Consistently drove within the speed limit, and within appropriate

distances of other buses.

(ii) Kept her bus on schedule.

(iii) Turned up to her shift on time.

(iv) Had not been involved in any incidents.

(v) Never got lost and followed her routes correctly.

(vi) Worked independently and did not need to be directed what to do.’

It was his view, and that of the other Committee members, that the applicant was not proactive outside of her driving duties and therefore scored lower in ‘attitude’, ‘teamwork’ and ‘skills’, compared to the others. All drivers had a Heavy Rigid Vehicle Licence, but the applicant did not hold a first aid qualification or a Greyhound-offered TAFE Certificate III in Driving Operations, which many other drivers had taken up.

[11] Mr Pope said that typically, employees are alerted to the possibility of selection the day before they are formally advised. This is because they are rostered on Work as Directed (‘WAD’) time, which is ancillary to driving. While WAD time is not unusual in and of itself, as it is rostered work, drivers would be alerted, if a demobilisation round was in progress.

[12] Mr Pope and Mr Gokel met with the applicant on 30 July 2019. She did not ask for a support person. Mr Gokel explained that as a result of the demobilisation direction and the selection process, unfortunately, she had been selected, and her employment would end. She was provided with demobilisation information, a statement of service and a letter ending her employment. The minutes of the meeting record only that the applicant had queried her original start date, which was amended to 9 July 2012.

[13] In cross examination, the applicant queried why the Company did not have her Certificate III in Transport and Logistics from 2012. Mr Pope said that all he was aware of from her personnel file, was a Certificate IV in Training and Assessment. The applicant claimed she had obtained the Certificate III in Transport and Logistics before commencing employment on the Project, and had included it with her other qualifications in her resume for the job in 2012.

Ms Lisa Strandberg

[14] Ms Strandberg’s evidence going to the nature of the Project, its workforce profile and the demobilisation process is referred to elsewhere in this decision. It is unnecessary to repeat it. Ms Strandberg had reviewed the applicant’s personnel file and confirmed the details of her employment and applicable industrial instruments. Ms Strandberg referred to the negotiations for the current Agreement and said:

‘Employees, including Ms McRae, were continuously made aware that Greyhound’s client (including Bechtel and Downer) might issue an instruction at any point, and that might result in their task for the Project ending. The potential for demobilisation was regularly communicated to employees (and occurred to many of Ms McRae’s colleagues) from 2016 onwards, being the point at which demobilisations began to occur.’

Ms Strandberg referred to the Toolbox meeting of 27 July 2019 which referred to an agenda item: ‘[t]here will be demob of drivers early next week …4 will be demobbed at some stage next week’.

[15] Ms Strandberg said that the reasons the applicant’s employment came to an end were as follows:

‘(a) Greyhound was engaged by Downer for a clearly defined and finite task – providing transport services to the Project under an interim contract to support the transition from the construction to the operations phase. This task was necessarily short term in nature, given Chevron’s plans to tender for a direct contract for these services for the operational phase.

(b) Given the finite nature of the Services Contract, Greyhound’s labour requirements were temporary. Greyhound’s labour requirements were dictated by the Services Contract and, once the contract was terminated, or the scope of services reduced, these labour requirements would correspondingly reduce.’

[16] Ms Strandberg claimed that providing transportation for short term construction projects is a separate and clearly identifiable division of Greyhound (as distinct to its more well-known retail coach business, marketed to the public). In tendering for such contracts, the tender is prepared on the following basis:

‘(a) the employees engaged on the relevant project will be either casual or ‘specified task’ employees;

(b) when the project is completed, or Greyhound is otherwise demobilised from the project, the relevant employees will automatically cease working for Greyhound; and

[17] Ms Strandberg said these features were well-understood by employees and reflected in their employment contract and the Agreement. The practical effect is that the end of the applicant’s employment did not directly, or consequentially result from any action, or decision of Greyhound. Once Downer’s service requirements reduced and a direction was issued to Greyhound, there was no capacity for Greyhound to refuse, or ignore the direction.

Ms Sarah Ismail

[18] Ms Ismail had been in her present role since February 2019 and commenced employment on the Project on 18 December 2015. She is responsible for the ‘end to end’ management of all of Greyhound’s Western Australian projects and for bidding and tendering for new work in that State. Wheatstone was Greyhound’s only operation in Western Australia at the time. Ms Ismail described in some detail the nature of Greyhound’s contract on the Project. Prior to 15 May 2019, Greyhound’s service contract with Downer related to the number of buses Downer required for the Project for which Greyhound received a service fee, based on the number of buses required. After 15 May 2019, the contract was restructured such that the service fees were based on the number of buses and second drivers. This was an efficiency solution in which two drivers utilise one bus daily, thereby extending the operational hours to meet the requirements of the Project.

[19] Ms Ismail said that Greyhound is regularly asked to advise Downer and Chevron when particular bus runs are empty or appear unnecessary, and make recommendations accordingly. However, all decisions on service requirements are made by Chevron and communicated to Greyhound by Downer in a formal written direction. Usually, Greyhound has 30 days to reduce its bus and driver numbers to reflect the new service requirement (i.e. demobilisation). Ms Ismail agreed that Greyhound is not directly compelled to reduce bus numbers and drivers, but not doing so affects the fees Greyhound receives for its services. To do otherwise would be uncommercial and might compromise Greyhound’s relationship with Chevron and Downer.

[20] Ms Ismail said that on 16 April 2019, Downer directed Greyhound to reduce its bus services from 15 to 13 a day, and reduce its driver numbers from 5 second drivers to 0. Service fees were to be adjusted from 15 May 2019. Initially, Ms Ismail estimated a need to run 13 buses per day, with a reduction of 10 drivers. This became 6 drivers (from 27 to 21). By late June 2019, the need for 13 buses a day became too many, and a further assessment was made to reduce the 13 buses to 11 in coming months, with a further reduction of 4 drivers (21 to 17).

[21] Ms Ismail acknowledged that all of the 21 drivers as at June 2019 were high performers. There had been a potential opportunity to redeploy four drivers to Greyhound’s operations in Gladstone, Queensland. However, after further discussions with her counterpart in Gladstone, by early July, the additional drivers were no longer necessary. After this, Ms Ismail convened the Demobilisation Committee on 5 July 2019. Ms Ismail had been involved in approximately 14 demobilisation rounds over the previous 18 months. The Committee consists of a cross section of the management to ensure a holistic approach and different perspectives. Ms Ismail said that in addition, she always asked the General Manager Operations, Mr Smith and Ms Strandberg to review the Committee’s assessments. They had not changed any of the Committee’s decisions.

[22] Ms Ismail described the ranking exercise which involved populating an Excel spreadsheet that listed the Agreement criteria requirements for each driver. Annexed to this decision, as Annexure ‘A’, are details of this criteria. Ms Ismail explained that as the driver group was small and all high performers, the scores were relatively close. However, the focus of the Committee was on who would be best to retain.

[23] Ms Ismail set out the applicant’s ranking in each of the categories and the reasons for the ranking. She described this as follows:

‘(a) A 3/3 for disciplines. She did not have any warnings or other disciplinary events recorded on file. All drivers scored highly in this category, so it was not a point of differentiation.

(b) A 3/5 for team work. This score was low relative to the other drivers ranked that day. I do not specifically recall who led the discussion on this point. It was likely Mr Worcester. My view, and I understand that the other Committee members also held this view, was that Ms McRae would perform team-based duties (such as bus washing) as directed, and would pull her weight. However, she rarely displayed initiative. In contrast, the employees that we selected to retain were those who the Committee decided had gone above and beyond. For example, they suggested ways that team-based tasks could be performed more efficiently, and proactively reported issues to management.

(c) A 5/5 for operational knowledge. All drivers ranked highly in this sub-category. It was not a point of differentiation as it had been in previous demobilisation rounds, when there were more drivers. Further, it had become less important as a factor relative to other demobilisation rounds because:

(i) During the construction phase Greyhound operated five or six varieties of bus. By July 2019 there were only two varieties in operation, so a driver’s strong operational knowledge of six different varieties of bus did not differentiate drivers.

(ii) During the construction phase, the traffic management plan was more complex because there were more vehicles on the road, more bus stops in challenging locations, and the quality of the road was lower relative to the operational conditions in July 2019.

(d) A 3/5 for attitude. My view, and I understand that the other Committee members also held this view, was that Ms McRae would do her work as required, and would say the right things, but would not proactively raise observations or concerns to management’s attention, relative to those that we selected to retain. Ms McRae did have a good attitude at work for her assigned tasks. However, to differentiate the close group of high quality drivers, we scored the drivers that had showed proactivity, initiative, and a desire to go above and beyond higher than those who had not shown those qualities.

(e) A 0/2 for qualifications. Ms McRae had not elected to do the Certificate III or IV in Driving Operations offered by Greyhound. This differentiated her from others who scored higher in this sub-category. She also did not hold a first-aid qualification, in contrast to some others.

(f) A 1/1 for HR License. Each of the drivers ranked at this meeting received full points for this sub-category, so it was not a point of differentiation.

(g) A 0/5 for skills. Most drivers scored low for this sub-category (i.e 0-2 points). Only two drivers received a 5/5. At this stage of the Project, we focussed on skills that went beyond just driving well. The skills criterion included skills such as the participating in the PBS program, proactively assisting coordinators, and volunteering to perform higher duties. For example, during the construction phase, when there had been a large number of drivers, Greyhound offered drivers the option to train as a blood and alcohol tester, to run the testing process at the sign on desk. Testing was usually run by the co-ordinators, but it formed part of the driver’s duties during this peak period, to manage workflow. The Demobilisation Committee noted that Ms McRae did not volunteer for the PBS program, or proactively offer to assist the co-ordinators or perform higher duties, and was not trained as a blood and alcohol tester. For this reason, she received a low score for this sub-category.

[24] Ms Ismail said the Committee considered each of the driver’s experience, as set out in Criterion 4 which reads:

‘(d) Criterion 4 – experience (no point value assigned). This comprised a driver’s years of service with Greyhound. This was not limited to their time on the Project. The applicable start date for each driver was listed on the spreadsheet for the Demobilisation Committee’s consideration.

Ms Ismail noted that experience did not just mean years of service, but also related to the driver’s performance. All drivers were of equivalent experience. Therefore, this was not a differentiating factor. Ms Ismail said the result was the applicant had 25 points, 2 drivers had 27 points, and 4 drivers had 28 points. As one driver was only required for selection in the 4 who gained 28 points, the driver with the least service was selected in accordance with Cl 11.3 of the Agreement. Mr Smith and Ms Strandberg approved the outcome.

[25] Ms Ismail said that at a Toolbox meeting on 27 July 2019, the drivers were informed that four drivers were soon to be demobilised. Although the applicant was not at the meeting, she was encouraged to access the information on the website. Mr Gokel then arranged the roster with the four drivers placed on the WAD roster for the week commencing 29 July 2019. Drivers understood what the WAD roster meant and that their demobilisation was imminent. Mr Gokel later advised Ms Ismail of the meeting he and Mr Page had with the applicant on 30 July 2019. Although there was an issue with the applicant’s start date, Mr Gokel had advised that ‘the meeting went well’.

Mr Ben Gokel

[26] Mr Gokel was appointed as a Coordinator on the Project in early 2014. In mid-2016, he was appointed as a Scheduler, and in late 2018, his role changed to Senior Planner. This role involved:

‘(a) scheduling bus runs for drivers;

(b) building rosters for the drivers;

(c) ‘day building’, which is a process by which drivers are allocated to particular bus run, taking into account considerations such as fatigue, experience, skills and qualifications; and

(d) liaising with other contractors.’

He claimed he regularly interacted with the applicant.

[27] Mr Gokel’s evidence largely dealt with the matters already the subject of the other witness evidence, concerning Downer’s directions to demobilise and the processes followed as a consequence.

[28] Mr Gokel had responsibility for providing bus run data and preparing options for bus reductions. He had been involved in five demobilisation rounds since December 2018. It was his evidence that between 2015-2017, demobilisation rounds were not actively communicated to employees. In late 2017, it was decided to inform employees of demobilisation rounds through weekly Toolbox meetings and daily pre-start meetings. Questions were encouraged and many employees took up the opportunity to do so. This was the same process for the July 2019 demobilisation round.

[29] Mr Gokel’s understanding of the selection criteria; see: Annexure A, is as follows:

‘(a) Discipline: this related to whether or not an employee had been disciplined within the past year, and what form of disciplinary action was taken. Actions that could be taken included a verbal warning, written warning, or final notice.

(b) Safety consciousness: this was assessed by looking at a drivers’ conscientiousness in completing a ‘start card’: a safety document that requires analysis and hazard breakdown of all dangers that the driver will face in their day. Conscientious drivers will complete the start card with care, and will suggest new categories of hazards to assess. Another component to be considered for safety consciousness is whether the driver makes safe decisions when faced with hazards.

(c) Team work: as only 21 drivers currently remained on the Project, a primary consideration in this demobilisation round was how the remaining drivers would work together. Team work included matters such as:

(1) a driver communicating with other drivers when their bus run might impact those other drivers; and

(2) a driver offering assistance outside of their driving duties, by assisting management staff, and problem solving with other drivers on issues that arise.

(d) Operational knowledge: this was assessed based on each driver’s knowledge of the bus runs, the ability to drive all variants of bus on the Project, and to know where stops and one way roads were located on site. This also included filling out bus run sheets correctly, and documenting kilometres driven and passengers carried.

(e) Ability to work without supervision: this criteria related to assessing which drivers did not need to be chased up by management staff, who cleaned and refuelled their busses without being directed, and who seemed to learn from their mistakes.

(f) Attitude: this referred to a driver’s general demeanour, and ability to get along with other drivers and management staff. In July 2019, all drivers had a very good attitude.

(g) Relevant qualifications: this related to qualifications such as a first aid qualification, or TAFE Certificate III in Driving Operations.

(h) HR licence: I believe that drivers on the Project were only required to hold a ‘Medium Rigid Licence’. However, at some point Greyhound began advertising for only drivers with a HR Licence. All of the drivers ranked in this demobilisation round had a HR Licence.

(i) Skills: this included acting up and taking on additional duties, such as administration, training, health and safety duties. It also included taking on the ‘People Based Safety’ (PBS) duties. PBS was a site-wide program which involved a person agreeing to inspect the work of others on a ‘no name no shame’ basis, and then reporting safety compliance observations back to management. The PBS system enabled Greyhound and other contractors to identify safety issues, and prevent incidents.’

Mr Gokel’s recollection of the Committee’s discussion of the applicant was:

‘(a) Ms McRae was a good employee, which is why she had been retained during previous demobilisation rounds.

(b) Ms McRae scored highly in the discipline, safety consciousness, operational knowledge and ability to work without supervision categories. While Ms McRae had high scores here, so did many other employees, as only the top drivers had been retained at this point in the Project.

…

(j) Ms McRae did not score as highly in the areas of team work or attitude, relative to those selected to remain. While in previous rounds, Ms McRae may have received a higher score in these categories, she was being compared to a high performing group of drivers who had remained on the Project through many demobilisation rounds.

(k) Although Ms McRae never caused problems and pulled her weight, she was not as proactive as other drivers and was not as much of a team player. I observed that her direct manner of speaking to others could sometimes come across the wrong way, and would impact on team dynamic. She was never mean, but my assessment, and I understand that others agreed, was that her attitude was not as good as the remaining drivers.’

[30] As Mr Gokel was responsible for setting rosters, this included WADs. This was not unusual. Drivers were generally aware that WAD time was likely related to their imminent demobilisation. Employees are informed by text message the day before their demobilisation meeting. This was usually held between 7:00am-8:00am to minimise the number of drivers in the yard. Mr Gokel convened the meeting with the applicant. He asked if she would like a support person present, but declined. After advising the applicant of her demobilisation, Mr Gokel provided her with a pack of documents, including a Demobilisation Information Sheet, a Statement of Service, and a termination of employment letter. He explained each document and the arrangements for her to pack her accommodation and fly home. While the applicant queried her start date, he later confirmed that the date was correct. That night, Mr Gokel went for dinner and drinks with all the demobilised drivers, and the applicant flew out the next day on 31 July 2019.

For the applicant

[31] The applicant provided two statements which, understandably, were a mixture of evidence, her opinions and submissions. I provide a summary of her statements, without differentiating her evidence from her submissions.

[32] In her first statement, the applicant accepted that all Greyhound employees on the Project were aware of the need to reduce buses and therefore driver numbers, as the Project wound down. Although Greyhound had guidelines for reducing employee numbers (being Cl 11 of the Agreement), the applicant claimed that Greyhound did not follow either Cls 11.1, 11.2 or 11.3 of the Agreement, when ‘dismissing’ her from employment.

[33] The applicant noted the respondent’s view was that there was no need to resort to Cl 11.3 (service), because a sufficient differentiation existed after the Cl 11.1 process. However, she claimed no explanation was provided as to how that differentiation was arrived at, and she was never provided proof by way of the Excel spreadsheet. She had also been denied access to her personnel file.

[34] The applicant believed the decision to ‘dismiss’ her, was based on a claim she had lodged in the Western Australian Industrial Relations Commission (‘WAIRC’) for unpaid entitlements under her contract of employment, pursuant to Reg 61(2) of the Industrial Relations Act 1979 (WA). She said she commenced this claim in June 2018 and there were two hearings in the WAIRC, where Greyhound had acknowledged she was owed ‘Wheatstone Special Leave’, but was offered less than 6% of what she was owed. After her demobilisation, she withdrew her claim in the WAIRC in October 2019, without any settlement being reached. The applicant contended that as this claim was a workplace right, which is protected under s 341(1) of the Act, her workplace rights had been breached. This claim was the only issue that distinguished her from the other drivers. She submitted that she:

• had worked on the Project for over seven years;

• was good at her job;

• had no disciplinary issues in the previous 12 months;

• had complied with all reasonable requests from management; and

• had longer service of several years more than other employees retained and who have the same qualifications as she does.

[35] The applicant sought compensation for her ‘dismissal’ of the remaining three ‘swings’ and one week and three days’ wages for the period 1 August 2019 to 30 November 2019. The amount sought totalled $36,115.51.

[36] In a reply statement, the applicant disagreed with the proposition that upon the Project’s winding down, employees would cease employment automatically. Employment does not cease automatically as there is a process required under Cl 11 of the Agreement. The applicant believed that as she was not employed by Downer, the fact Downer required less bus services resulted in Greyhound selecting her for dismissal. Her contract was with Greyhound. Downer did not dismiss her; rather, Greyhound representatives notified her of her dismissal.

[37] In cross examination, the applicant said she was ‘not sure now, yes, I don’t know’ when asked if she held the belief that her demobilisation was motivated by her unpaid entitlements claim in the WAIRC. She agreed that there was an earlier demobilisation round in April/May 2018 after she had filed this claim and obviously, she was not demobilised at that time. She added that she still thought the claim played some sort of factor (in her demobilisation) ‘but [she] couldn’t prove it’.

SUBMISSIONS

For Greyhound

[38] Mr Giorgi submitted that this case turns on a proper construction of the applicant’s contract of employment and the relevant Agreement in the context of the industrial realities of Greyhound’s bus operations on a large construction project. He observed that most of the evidence in the case was uncontroversial, as demonstrated by no cross examination of three of Greyhound’s witnesses, and limited questioning of a fourth (Mr Pope).

[39] Mr Giorgi summarised the nature and features of the Project and Greyhound’s role and contractual terms in providing bus services to Downer (elsewhere set out in the evidence above). He said that after lengthy, hard-fought bargaining in 2014 and 2015, the Agreement was made and approved by the Commission. A central feature of the negotiations was the unilateral right of conversion from casual employment to permanent employment (as the applicant did) with an acceptance that employment was for a specified task (driving on the Project), and a consequent agreement that once the task was completed and the Project was completed, employment would automatically cease. In exercising the right to convert to permanent employment, the applicant (and most other drivers) specifically agreed to accept the negotiated bargain and had understood the terms of their agreement and contracts of employment.

[40] Mr Giorgi set out the circumstances of the applicant’s demobilisation which had become necessary in June/July 2019. The process was well-known and understood by all drivers. He identified the three jurisdictional bases, any of which would be found to result in the applicant’s unfair dismissal application being dismissed. These are:

1. the applicant was engaged for a specified task and her employment ended at the conclusion of the task; see: s 386(2)(a) of the Act; or

2. the applicant’s employment was not terminated at the initiative of Greyhound (the employer); see: s 386(1)(a) of the Act; or

3. this was a case of genuine redundancy; see: s 389 of the Act.

Mr Giorgi submitted that while the first two objections are relatively complex, the genuine redundancy question is simpler and clearer. Accordingly, he dealt with this objection first.

[41] Mr Giorgi said that there are three elements which must be satisfied to establish a genuine redundancy. Firstly, that the employer no longer required the job to be performed by anyone. It is uncontroversial that the practical effect of Downer’s direction to demobilise a number of drivers was that Greyhound no longer required the applicant’s job to be performed by anyone. This was the scenario in [1548] of the Explanatory Memorandum to the Fair Work Bill 2008 (‘Explanatory Memorandum’),and is consistent with two Full Bench authorities in Deeney & Ors v Patrick Projects Pty Ltd [2019] FWC 1772 (‘Deeney’) and Low v MenziesProperty Services Pty Ltd [2014] FWC 7829 (‘Low’). These authorities make clear that when a principal directs a contractor to reduce the scope of services provided, resulting in a reduction of the workforce, the contractor no longer requires the job to be performed by anyone, even if some workers remain and continue to perform aspects of these activities.

[42] Secondly, as to the obligation to consult, Mr Giorgi observed that consultation is not required in every case, as it depends on the nature of the obligation under the Award or the Agreement; see: Kekeris v A. Hartrodt Australia Pty Ltd t/a a.hartrodt [2010] FWA 674. He said that there is a specific exception to the ‘Significant Effects’ clause in Cl 24(1)(b) of the Agreement which provides:

‘Where this agreement makes provision for alteration of any of these matters an alteration is deemed not to have a significant effect.’

This exception expressly applies to the circumstances of demobilisation set out in Cl 11 of the Agreement and must also be read with Cl 7.2 which provides that:

‘(c) Greyhound ceases to provide services on the Wheatstone Project, for any

reason; or

(d) the Wheatstone Project comes to an end for any reason,

whichever is the earlier.’

[43] Mr Giorgi added that in any event, the Consultation Clause is not triggered, as the requirement in Cl 24(1)(a) is significant effects on the ‘Employees’ (plural), meaning all employees covered by the Agreement. That cannot apply to individual employees or groups of employees. In addition, such an adverse finding against Greyhound would constitute an allegation of a breach of the Agreement. Such a finding would not be lightly made; see: Rowland and McCreadie v Bristow Helicopters Australia Pty Ltd[2018] FWC 423.

[44] Thirdly, in respect to redeployment options, Ms Ismail’s uncontested evidence was that although four jobs appeared promising in Gladstone, these did not eventuate, and no other redeployment opportunities existed elsewhere, particularly as Greyhound has no other project contracts in Western Australia.

[45] Mr Giorgi submitted that the applicant’s criticisms of the selection process are not relevant for the purposes of s 389 of the Act; see: [1553] of the Explanatory Memorandum and UES (Int’l) Pty Ltd v Harvey[2012] FWAFB 5241 (‘Harvey’). In respect to Cl 10 which reads:

‘Any entitlement to Redundancy pay will be in accordance with the NES.’

Mr Giorgi acknowledged that no redundancy is paid to demobilised employees as Greyhound’s view is that the decision to end employment is not at the initiative of the employer or, in the alternative, this was a case of termination in the ordinary and customary turnover of labour.

[46] Mr Giorgi next dealt with the objection based on the applicant’s employment being for a specified task which ended at the completion of that task. He explained and relied on the decisions in Derar v Recruitico Pty Ltd [2013] FWC 9791 (‘Derar’) and Henderson v John Holland Pty Ltd [2012] PR917230 (‘Henderson’). In Henderson, the task was a specific component (concrete finishing work) of a large project (Redcliffe Water Treatment Plant), similar to the facts of this case. Mr Giorgi said this approach was endorsed by the Full Bench in Dale v Hatch Pty Ltd[2016] FWCFB 922 (‘Dale’). In that case, the Full Bench said that the word ‘specified’ requires the task to be identified in definite terms, and importantly, the contract of employment must be for a specified task which is clear and predictable. Mr Giorgi put that predictability does not mean exact timing (as the end of employment), as various factors may come into play, including additional work which might be required to complete the task. The Full Bench found that the unspecific and generic nature of the task engaged in, and that the employee’s contract of employment did not specify employment was conterminous with such a task, meant the exception in s 386(2)(a), did not apply. Similar circumstances applied in Newton v Lend Lease Engineering Pty Ltd[2018] FWC 6385 where Saunders C (as he then was) found that the identification of the task must be clear and predictable, and not a matter of doubt or speculation; see also: Galbraith v Wilmar Sugar Pty Ltd t/a Wilmar Sugar[2018] FWCFB 6713 and Fisher v Edith Cowan University (1997) 72 IR 464.

[47] In comparing the present case, Mr Giorgi said the applicant’s task as set out in her contract of employment was ‘as a driver engaged in the Wheatstone Project’ where the Agreement sets out her terms and conditions of employment. Specifically, the Agreement’s terms provide as follows:

‘6.1 Employees at the Wheatstone Project will be employed as either full time specified task or term Employee (Full Time Employee) or a Casual Employee. The nature of your employment will be set out in your offer letter.

…

7.2 Your employment will cease when:

(d) the Wheatstone Project comes to an end for any reason,

Greyhound will. not be required to provide you with any notice or termination or payment in lieu where your employment:

…

(b) ceases at the conclusion of a specified task or term.’

See also: other relevant provisions in [2] and [3] above.

[48] Mr Giorgi submitted that these documents, when read together, demonstrate the applicant’s task (providing bus services) was distinct and identifiable. The work is a specific component of the Project. Employment ceases automatically when that task is completed. It is clear and predictable. The parties understood and agreed to the plain characterisation of their arrangements on the Project. To find otherwise, would be contrary to the express intention of the parties and undermine the industrial bargain reached (the Agreement).

[49] As to the third objection (termination of employment was not at Greyhound’s initiative), Mr Giorgi noted that while Greyhound has some flexibility as to the demobilisation process in Cl 11 of the Agreement, ultimately the applicant’s employment did not end as a result of any act by, or conduct of Greyhound. It was by the operation of law, being the contractual employment terms; see: Derar and Singh v Labourforce Impex Personnel Pty Ltd [2017] FWC 1062. This case concerned a labour hire company where the principal directed the person’s services were no longer required. By reference to Dale, the Full Bench found against the specified task objection, but said that the employee was not terminated at the initiative of the employer (at [25]). In this case, the instigating and contributing factor was Downer’s direction to reduce bus services. Greyhound cannot ignore this direction. Once that process is set in motion, Greyhound is required to comply with the steps in Cl 11 of the Agreement, and it did so.

[50] Mr Giorgi submitted that these circumstances appear to have been accepted by the applicant when she said in her submissions:

‘Greyhound’s direct action was to dismiss me, which was a consequence of Downer’s service requirements’.

This is corroborated by the applicant when her claim of compensation is based on the scheduled end of Greyhound’s contract in 2019, when her employment would otherwise have ended automatically.

[51] Mr Giorgi then dealt with the applicant’s central complaint that Greyhound should have adopted a strict ‘last on first off’ process and that Greyhound did not acknowledge, or take into account her extensive training. While the process of selection is not relevant in a case of genuine redundancy, if this objection is not upheld, the process, in any event was thorough, fair and transparent. The fact the applicant was in the remaining 21 of over 130 drivers, is a testament to her being experienced and technically proficient. All of the 21 drivers were the best of the drivers. However, a differentiation had to be made, not based on length of service, but in the best interests of ensuring Greyhound could continue to provide services on the Project. Length of service is only a feature where two or more employees cannot be differentiated.

[52] Mr Giorgi put that the process was thoroughly detailed and explained in the evidence, and all relevant factors were taken into account. There can be no criticism of the process. In answer to questions from me, he advised that during the course of earlier demobilisations, there had been unfair dismissal applications filed by demobilised employees. However, all applications in these matters had been withdrawn, without any settlement monies paid.

[53] Finally, Mr Giorgi relied on the written submissions as to the application falling under s 387 of the Act, should Greyhound’s objections be all dismissed. For reasons which will become evident shortly, I need not rehearse these submissions.

For the applicant

[54] The applicant identified all of her certifications and qualifications as follows:

• Industrial Drivers’ License

• First Aid Certificates

• Certificate III – Transport and Logistics

• High Risk Forklift Licence

• Construction Card

• Driver’s Licence

She maintained that all these qualifications were provided to Greyhound when she commenced employment in 2012 and would be on her personnel file. In addition, she had gained further qualifications during her employment on the Project. The applicant explained that she had not elected to do the Certificate III or IV in Driving Operations as it is equivalent to the Certificate III, which she already had. When she asked about the Certificate IV, she was told that she was not permitted to do it.

[55] The applicant submitted that Greyhound did not follow the demobilisation process because they claimed she had no qualifications, when she did, and they should have been in the Company files. She had only found out about the process when she asked about the spreadsheet and was provided with a redacted copy after her dismissal. She claimed this was not a transparent process.

[56] The applicant said that on 26 July 2019, she had been advised by Chevron that she had been selected to join the Chevron Medical Response Team. The day before her demobilisation, Mr Gokel had approved her attending a Chevron course, so she was actually unaware of her demobilisation on Saturday 27 July 2019, when the Toolbox meeting was held. Her demobilisation prevented her from taking up Chevron’s offer, as she had to be onsite to undertake the training. She agreed she had not asked Chevron to be allowed onsite to do the training.

[57] Lastly, the applicant said that although she had identified 30 November 2019 as the date up to which she should have been paid, she now understood the contract runs to 30 March 2020 and she would have remained employed up to the end. The applicant advised that after her dismissal, BHP sponsored her for a Certificate III Process Manufacturing Course which she had undertaken in the past five months. She had gained employment with BHP on 2 January 2020.

In reply

[58] Mr Giorgi said that Greyhound was not putting that the applicant had no qualifications; rather, it was a very small part of the overall selection criteria and this factor would not have made a difference, in any event. He also noted that qualifications submitted in 2012 may not have been current or up to date. This is particularly so in respect to qualifications in first aid.

[59] As to the transparency complaint, Mr Giorgi submitted that the detailed evidence of Greyhound’s witnesses, clearly demonstrated the transparency of the process and the criteria used in the selection process and how it applied to the applicant. Further, there could have been no doubt about the demobilisation process being imminent from the Toolbox meeting on 27 July 2019.

CONSIDERATION

[60] It is incumbent on me to say from the outset that Mr Giorgi’s preparation and presentation of Greyhound’s case was a masterclass in the art of advocacy. Difficult and complex jurisdictional issues were logically, carefully and succinctly explained by reference to one or two key authorities and relevantly applied to the uncontested documentary evidence in the case. Mr Giorgi’s oral presentation was measured and calmly delivered without superfluous flummery or laboured repetition. In short, he was a very persuasive and effective advocate. Importantly, however, and notwithstanding the applicant was obviously overwhelmed by complex legislative provisions and legal principles, Mr Giorgi did not seek to take unfair advantage of the applicant by ridiculing or bamboozling her with complex or legalistic language. That said, I have no doubt that the applicant’s views are genuinely held by her. Nevertheless, and despite her submissions and arguments being largely unsupported by any evidence, Mr Giorgi did not belittle or embarrass her in any way. His cross examination was courteous, respectful, brief and to the point.

[61] Understandably, the applicant was not able to effectively deal with one – let alone three – alternative jurisdictional objections to her unfair dismissal application. In that sense, there was no effective contradiction. However, this does not mean that any one of Greyhound’s jurisdictional objections will automatically succeed. Greyhound must still demonstrate to the Commission’s satisfaction that its jurisdictional objections are legally and factually sound, a fortiori where three alternative jurisdictional objections are argued in different legislative contexts.

[62] As I apprehend it, the applicant essentially argued her case to its merits, from the prism of her beliefs that:

(a) the real reason she was selected for demobilisation was because she had pursued and filed an underpayment claim in the WAIRC under s 83A of the Industrial Relations Act 1979 (WA). It followed therefore she had exercised a workplace right, which resulted in adverse action being taken against her (termination of employment) in breach of the Act’s General Protections provisions under s 340; and

(b) Greyhound had not complied with Cl 11 of the Agreement, in that all of her qualifications were not considered as part of the criteria in the election process.

Although strictly not necessary for the disposition of this matter, but in deference to the applicant’s views and arguments, it is convenient to consider these matters first before returning to the jurisdictional objections.

[63] As to the applicant’s adverse action contention, it hardly needs to be said that the applicant has not filed any application under the General Protections provisions of the Act. This is not such a case. The Commission is exclusively considering the applicant’s s 394 unfair dismissal application; such a claim cannot be morphed into, or converted to another quite different and discrete application, under s 340 of the Act.

[64] Putting this insurmountable hurdle to one side, and while I accept the applicant has a suspicion that this issue (which she correctly acknowledged she could not prove), was highly influential in the decision of Greyhound to demobilise her, the relevant chronology and the facts do not support her suspicion. This is so because:

(a) her underpayment claim had actually preceded an earlier demobilisation process, which the applicant had been a part of, but she had not been selected at that time. If this was a factor in the selection process (which I do not accept), Greyhound could well have demobilised her much earlier than it ultimately did; and

(b) the underpayment claim was eventually filed in the WAIRC and subject to two conferences. No settlement of the claim was reached, with the applicant subsequently discontinuing the matter in October 2019. It might reasonably be assumed that the applicant held some residual grievance that this matter had not been resolved. Without more, this does not mean that the underpayment claim was a factor which influenced her selection for demobilisation.

Jurisdiction – genuine redundancy

[65] During the course of oral submissions, I put to Mr Giorgi that I considered his genuine redundancy objection may not be his best argument. I made this comment in the context of Cl 10 of the Agreement which reads:

‘Any entitlement to Redundancy pay will be in accordance with the NES.’

[66] It seemed to me that if Greyhound was correct that the demobilisation of the applicant’s employment was a case of genuine redundancy pursuant to s 389 of the Act, and therefore, the Commission had no jurisdiction to determine the unfair dismissal claim, then the applicant may have been logically entitled, at the very least, to the National Employment Standards (‘NES’) entitlement to redundancy pay, found at s 117 of the Act. It is not disputed that no redundancy pay was paid to the applicant. Obviously, such a conclusion would have a massive retrospective impact on all the employees who had been earlier (or later) demobilised, and would be contrary to the custom and practice on this Project, and presumably many other large construction projects where employee transportation services are provided by a contractor.

[67] However, on closer reflection and careful consideration of the interaction of the specific terms of the Agreement with the employee’s contract of employment, my concern in this respect has been answered and dispelled by Mr Giorgi’s submissions. I am satisfied that the legislative and Agreement provisions can comfortably coexist with a genuine redundancy objection and Cl 10 which addresses the ordinary and usual circumstances where redundancy pay might be applicable during the life of the Project, but where it is not applicable in the demobilisation processes. Moreover, rather than not being Mr Giorgi’s best argument, I have been persuaded by the express terms of the Agreement and the facts and circumstances of this case, that this matter is a case of genuine redundancy. I also agree that this objection is clearer and will be better understood by the applicant, than the other two objections which involve more complex legal principles and problematic concepts. These are my reasons.

[68] The meaning of genuine redundancy is found at s 389 of the Act and reads as follows:

‘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.’

[69] The definition is further explained by way of examples, in the Explanatory Memorandum at 1546 to 1553:

‘1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

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.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not 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 within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.’ (my emphasis)

[70] It is apparent that a finding under s 389 of the Act is predicated on three matters:

1. whether the persons job is no longer required to be performed, because of operational requirements of the enterprise;

2. whether the employer has complied with any obligation in an award or agreement to consult the affected employee/s about the redundancy; and

3. whether it would have been reasonable to redeploy any affected employees.

I will deal with each of these matters in turn after setting out the principles which have been developed by this Commission and the Courts in respect to redundancy, consultation and redeployment.

Meaning of redundancy

Redeployment

[71] As mentioned earlier, s 389 of the Act expressly defines ‘genuine redundancy’; see: [68] above. The Explanatory Memorandum further developed the meaning of ‘genuine redundancy’; see: [69] above.

[72] It is trite to observe that the meaning of the term ‘redundancy’ may vary, depending on the particular industrial context, and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J [12] held that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[73] A Full Bench of this Commission in Construction, Forestry, Mining and Energy Union (CFMEU) & Ors v Spotless Facility Services Pty Ltd t/a Spotless[2015] FWCFB 1162 said at [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee.’

[74] Further, in Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94, Vickery J (‘Hodgson v Amcor’), after summarising the relevant authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees.In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [endnotes omitted, emphasis added].’

[75] In Ulan Coal Mines Limited v John Howarth and others[2010] FWAFB 3488 (‘Ulan Coal v Howarth’), a Full Bench of the Commission held at [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise’.(my emphasis)’

[76] The Full Bench in Ulan Coal v Howarth, after considering relevant authority and the Explanatory Memorandum, concluded that:

‘It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that (at 308):

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… (at 308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.’ (my emphasis)

[77] In Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 (‘Dibb’) referred to above, the Federal Court said at paras 43 and 44:

‘43. The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the “bona fide redundancy of the taxpayer”. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• has reallocated duties;

• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and

• for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”.

44. In the present case, the employer redistributed the duties previously performed by its District Managers and at the same time, added further duties. The job, described by reference to its duties as previously performed by Mr Dibb, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. The result was that there was no job for which his skills qualified him. He was “surplus to [AVCO’s] personnel needs”. We consider that the respondent was in error in concluding that Mr Dibb’s dismissal was not by reason of his bona fide redundancy. As a result, the respondent also erred in failing to address the matters prescribed by s 27F. These errors have inevitably deprived Mr Dibb of the benefit conferred by Subdiv AA upon a person receiving a bona fide redundancy payment as part of an ETP.’

[78] It would also seem obvious and entirely understandable that the Commonwealth Parliament considered the history of the meaning of redundancy as expressed in the early authorities, when it crafted the statutory meaning used in s 389 of the Act.

Employer’s obligation to consult

[79] The meaning of the word ‘consult’, was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165. At [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy:

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

• ‘to provide information about the change; and

• to provide an opportunity for affected employees to give their views about the impact of the change; and

• to consider any views about the impact of the change that are given by the employees’(my emphasis)

[80] In Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239 (‘Maswan’), Watson VP held at [39]:

‘[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in the procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred [my emphasis].’

[81] It hardly needs stating that the word ‘consultation’, is arguably the most oft debated word in the industrial relations lexicon (perhaps, ‘reasonable’ being another). It has been the subject of considerable judicial and Commission exegesis. That said, it is important to note that despite the views of some uninformed litigants, consultation does not mean agreement. However, nor does it simply mean an exchange of information; nor is it a mere formality or triviality; see: Maswan above. Consultation must be meaningful, open, and transparent and involve a reasonable and realistic consideration of each other’s views.

Redeployment

[82] In Ulan Coal v Howarth, the Full Bench set out the obligations on an employer in regard to redeployment under s 389(2)(b) of the Act. At [27], [28] and [34] the Full Bench said:

‘[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the 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.

…

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.’

[83] In Technical and Further Education Commission t/a TAFE NSW v Pykett[2014] FWCFB 714, a Full Bench of the Commission held:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.’

[84] It is unarguable (and I do not understand the applicant to dispute it) due to the operational needs of the Project, indeed the reality of any construction project (and ipso facto its service providers, including Greyhound), that the work available for bus drivers had gradually reduced (ultimately to nil) and the full fleet of driver’s jobs could not be sustained; put simply, less work means fewer jobs. This scenario is entirely consistent with the example in the Explanatory Memorandum where it is said:

‘The employers’ business is experiencing a downturn and therefore the employer needs three people to do a particular task or duty instead of five’

[85] This was made clear by Hatcher VP in Low at [15]:

‘It is well established that the fact that the duties of a particular job or position which has been abolished have been re-allocated to another position or positions as part of an employer’s restructure does not alter the fact that the employer no longer requires that position or job to be performed by anyone. 1 Here, Menzies had two positions of Workplace Injury and Return to Work Coordinator. It has decided to abolish one of those positions, and have the holder of the remaining position perform all of the work previously done by both the position holders. That is a situation which falls squarely into s.389(1)(a).’,

and relevantly explained in Deeney where Bull DP, in a similar set of circumstances, said at [75]:

‘It cannot be seriously argued that the applicants’ positions were not made redundant due to the operational requirements of the respondent following an instruction from the client. The construction of an LNG plant on Barrow Island for the Gorgon Project is self-evidently work which would require an increase to and eventually a decrease in manning levels, the only question is the timing of these fluctuations which is in the control of the respondent’s principle who provides the respondent with instructions regarding their Schedule of Works and the employee numbers it is prepared to fund.’

[86] In this case, the employer needed 17 drivers to perform the driving tasks, instead of 21. In my view, this is a classic example of redundancy, even without the obvious conclusion that such circumstances are a well-accepted and understood outcome on any new construction project. In one sense, it is beside the point whether the applicant’s employment came to end at the initiative of Chevron or Greyhound, although the practical and legal reality was that the employment relationship between the applicant and Greyhound and its consequences were the result of circumstances entirely beyond Greyhound’s control.

[87] Accordingly, I am satisfied that s 389(1)(a) of the Act has been established.

[88] In respect to consultation, I agree that not all redundancy circumstances will require consultation in the ordinary sense as explained in the authorities. In the specific circumstances of a new construction project, there is an underpinning inevitability which is commonly understood and accepted by all parties as a natural phenomenon in the industry. For a bus driver, the reduced construction workforce would be plainly obvious by falling worker passenger numbers. No amount of consultation will likely result in changing the natural course of this inevitability, save of course for any redeployment options at another site or project of the employer.

[89] That said, I do not accept the applicant was not aware of her imminent demobilisation. She had been involved (though not selected) in numerous demobilisations at this site, and at least two other locations where she had previously worked. While the actual process is relatively short, from a Toolbox meeting, placement on a WAM roster and demobilisation meeting, no employee could reasonably complain of being taken by surprise by the process, or denied an opportunity to suggest alternative redeployment (although I accept that the employer will likely be the only one who is aware of such opportunities). In any event, an analysis of the authorities; see: McCormick v Mt Pleasant Stud Farm Pty Limited[2015] FWC 6360, make plain that a failure to properly consult (or to consult at all), where the other factors in s 389 have been satisfied, and the dismissal is found to be unfair pursuant to s 387 of the Act, will invariably only result in a compensation order of an amount that would have been made, had proper consultation occurred, over a short period – that is, one or two weeks’ pay. In any event, the Commission need not get to consideration of the merits of this application, as the Commission’s jurisdiction is not enlivened.

[90] Accordingly, I find that s 389(1)(b) of the Act has been complied with, given the peculiarities of the new project industry and its service providers during the construction phase.

Redeployment

[91] The uncontested evidence of Ms Ismail was that in June 2019, when exploring alternative employment opportunities for demobilised drivers, she became aware of four positions in Gladstone. This opportunity did not materialise. I am satisfied that Greyhound managers were actively looking for alternative work for drivers in the demobilisation round affecting the applicant. However, given that Greyhound had no other contracts in Western Australia and had been unsuccessful in bidding for ongoing contracts on the Chevron project, it would not have been reasonable to redeploy the applicant within Greyhound’s enterprise.

[92] Accordingly, s 389(2) of the Act has also been satisfied.

The merits

[93] As earlier mentioned, the applicant’s primary complaint is that she was wrongly selected for demobilisation. It is necessary to make plain that whether a dismissal is a genuine redundancy, does not go to the process for selecting individual employees for redundancy (see: [1553] of the Explanatory Memorandum).

[94] In Harvey, the Full Bench (by majority) said at [26]:

‘We have concluded, however, that s.387(a) of the FW Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct does not go to the process for selecting the person for redundancy’.

[95] Further, Hatcher VP said in Low at [16]:

‘The second submission is not relevant to my consideration. It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.’

[96] In any event, I do not accept that there was any error (let alone a serious error), in the selection process affecting the demobilisation. The applicant claims that all of her qualifications were not taken into account in the selection process, contrary to Cl 11 of the Agreement. In any assessment, even if the applicant’s claimed equivalent of a Certificate III in Transport and Logistics to a Certificate III in Driving Operations, it would not make any material difference to the outcome. This is so because the applicant was two points behind the next three employees who were also demobilised at the same time. In short, the gap could not have been made up, let alone overtaken. I also accept that the applicant’s emphasis on the ‘last on first off’ principle does not arise where the drivers selected for demobilisation focused on the established criteria, were not all equal before Cl 11 is enlivened.

[97] For the aforementioned reasons, I am satisfied Greyhound’s genuine redundancy objection has been made out. In these circumstances, it is unnecessary for me to make findings on the other two jurisdictional objections, suffice to opine that both are, prima facie, reasonably arguable.

[98] Given my determination above, there is no jurisdiction for the Commission to determine the merits of the applicant’s unfair dismissal application, as the mandatory definition of an unfair dismissal in s 385 of the Act has not been established in this case. Accordingly, the application must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Mr G Giorgi, Senior Associate, and Ms R Lee, Solicitor, Herbert Smith Freehills, for the respondent.

Hearing details:

2020.

Perth:

5 February.

Printed by authority of the Commonwealth Government Printer

ANNEXURE ‘A’

Kim McRae v Greyhound Australia t/a Greyhound Australia Pty Ltd

[2020] FWC 1868

28 APRIL 2020

DECISION