Laing O'Rourke Australia Construction Pty Ltd v Taggart

[2016] NSWCATAD 39

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Laing O’Rourke Australia Construction Pty Ltd v Taggart [2016] NSWCATAD 39
Hearing dates:	19 November 2015
Date of orders:	01 March 2016
Decision date:	01 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Kelly, Senior Member
Decision:	The decision under review is set aside and the direction is made that the requirement for the respondent’s consent to the cancellation of the apprenticeship referred to in s 39(3) of the Apprenticeship and Traineeship Act 2001 be waived.
Catchwords:	VOCATIONAL TRAINING – apprenticeship – cancellation - redundancy
Legislation Cited:	Apprenticeship and Traineeship Act 2001(NSW), ss 39(3), 51(4) Fair Work Act 2009 (Cth), ss 382, 385, 389
Category:	Principal judgment
Parties:	Laing O’Rourke Australia Construction Pty Ltd (Appellant) Aaron Taggart (Respondent)
Representation:	Counsel: M Easton (Appellant)   Solicitors: T Costa (Rail, Tram and Bus Industry Union NSW Branch) (Respondent)
File Number(s):	1510446

REASONS FOR DECISION

Introduction

1. The appellant, Laing O’Rourke Australia Construction Pty Ltd, is appealing against the decision made on 7 July 2015 by the Vocational Training Review Panel pursuant to s 51 of the Apprenticeship and Traineeship Act 2001 (the Act) to dismiss its complaint that the respondent, Aaron Taggart, did not consent to the cancellation of his apprenticeship after being made redundant.

2. The appellant also appealed against the decision made on 18 August 2015 by the Vocational Training Review Panel to dismiss its complaint seeking to have the apprenticeship suspended pending the appeal to this Tribunal. However, the appellant told the Tribunal that the suspension issue “has gone away” because it has given the respondent work. I do not address that matter further.

The issues in the case

3. The issues in this case are:

1. whether the redundancy was a true redundancy or a sham;

2. whether the circumstances at the time of this decision supported a finding that the respondent’s consent to the termination of the apprenticeship agreement should be waived.

The evidence

4. The appellant relied on written and oral evidence from Patrick Greene, Operations Manager – Sydney Rail Operations, and Peter Slattery, the Employee and Industrial Relations Manager – Southern Region. The respondent relied on written and oral evidence from the respondent and Luke Hayden, an organiser for the Rail, Tram and Bus Industry Union NSW Branch.

The law

5. The appellant’s complaint to the Commissioner for Vocational Training that the respondent had refused to consent to the cancellation of the apprenticeship was made pursuant to 39(3) of the Act.

6. Section 51(4) of the Act provides that the Vocational Review Training Panel must determine a complaint under s.39(3) by either directing that the requirement for consent be waived, or by dismissing the complaint. This Tribunal exercises that power on appeal.

The appellant’s submission

7. The appellant submitted that it has established a proper basis for cancelling the respondent’s apprenticeship such that the Tribunal would exercise its power to waive the requirement for the respondent’s consent to the cancellation. The appellant claims that it was cancelled for financial and supervision reasons. The respondent was made redundant because it does not want the work he was doing done by anybody. It also claimed that it made a choice between employees and that this Tribunal should follow the long-established practice of industrial and employment tribunals and not intervene lightly in employer decisions relating to redundancy.

The respondent’s submission

8. The respondent relied on the unfair dismissal provisions of the Fair Work Act 2009 (the FWA). Mr Costa, appearing for the respondent, argued that the respondent was a person who is protected from unfair dismissal within the meaning of s 382 of the FWA. He relied on s. 385 of the FWA which defines when a person has been unfairly dismissed, and in particular 385(d) to argue that “the dismissal was not a case of genuine redundancy”.

9. “Genuine redundancy” is defined in s 389 and requires (a) that 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”. It is not a genuine redundancy if “it would have been reasonable in all the circumstances, for the person to be redeployed with the employer’s enterprise or an enterprise of an associated entity of the employer” (s. 389(2)).

10. The respondent argued that the redundancy was not genuine within the meaning of s 389 because:

• The applicant was working every day of the week except for rostered days off before he was made redundant and there is currently ongoing work available to the appellant in which the respondent could be usefully employed.

• The appellant recently engaged new employees and transferred existing casual employees into full-time positions which are identical to that occupied by the respondent before his employment was terminated.

• The appellant failed to consider redeployment options for the respondent in associated entities.

• The appellant failed to comply with the consultation requirements of the relevant enterprise agreement (EA).

11. It was therefore not appropriate to waive consent to cancellation of the apprenticeship.

12. In addition, it was submitted that the respondent has suffered considerable financial loss as a result of previous suspensions of the apprenticeship granted by the Vocational Training Review Panel for the period 30 January to 13 July 2015 when the respondent received no payment from the appellant.

13. For those reasons the respondent submitted that the appeal should be dismissed.

Consideration and findings

14. The respondent’s apprenticeship was called Electricity Supply Industry – Power Systems – Rail Traction Certificate. The apprenticeship began in May 2013. The letter from State Training Services dated 2 September 2013 states that it began on 3 May 2013, although the employer representative did not sign the training contract until 31 May 2013. The apprenticeship was for four years.

15. The respondent was given a letter advising him of his redundancy on 2 February 2015, less than two years into his apprenticeship. He was not at work on 30 January 2015 when three other employees were given their redundancy notice.

16. It is not in dispute that the respondent had not been consulted before he was given the redundancy notice.

17. Mr Hayden met with two representatives of the applicant, Mr Ian Prescott and Mr Greene, on 15 January 2015 to discuss potential redundancies which in Mr Hayden’s words “would need to take place as work was beginning to dry up within Sydney Rail Operations (SRO)”.

18. Mr Hayden claimed in his statement that at the meeting he requested a list of employees being considered for redundancy so “we can be aware of which employees are members and require representation and assistance during the consultation period”. However, the email correspondence he attached to his statement does not reflect that he pursued that request.

19. On 20 January 2015 Mr Greene sent Mr Hayden an email attaching a draft redundancy letter “which will be issued to select employees later this week” and inviting Mr Hayden to contact him “if there is anything you think we should tweak on this”.

20. Mr Hayden acknowledged at the hearing that he did not take issue with the appellant that the redundancies were not genuine. He claimed that he did not take issue with the appellant who might be made redundant because he did not believe that it was up to that stage. However, Mr Greene’s letter was clear that redundancies were imminent.

21. On 2 February 2015 Mr Greene sent Mr Hayden an email listing the names of the three employees who had been made redundant on 30 January and advising that the respondent had been made redundant on 2 February 2015. Mr Greene invited Mr Hayden to a meeting with employees the following Friday in relation to “getting a roster system in place”. Mr Hayden replied within 30 minutes, thanking Mr Greene “for the list and the invitation” and advising that he would call him in relation to the respondent “as we have some further enquiries regarding being made redundant”.

22. The next day, Mr Greene advised Mr Hayden, in summary, that the respondent’s apprenticeship could be terminated by mutual consent, transfer to a new employer or be suspended if there was in the future, a prospect of work becoming available for the apprentice to finish their time.

23. Another employee who had been made redundant was also an indentured apprentice. On 6 February 2015, a meeting was held that was attended by that employee, Mr Hayden, Mr Greene, the respondent and a representative of the State Training Service (STS), who advised that termination of their apprenticeships by redundancy was not valid. Mr Greene said that the appellant proposed to cancel both apprenticeships and seek the approval of the apprentices. Both employees refused on the basis that the redundancies were not genuine.

24. Further meetings were held involving STS seeking an agreed outcome. The other employee’s apprenticeship was able to be completed through “an accelerated program by competency based completion” and was finalised in June 2015.

25. Mr Hayden said in his statement that the respondent was unable to complete his apprenticeship on that basis “as he still had a fair way to go before being able to complete his apprenticeship which included physically working in the role to be deemed competent”. The hearing proceeded before the review panel.

26. After the decision of 7 July 2015 dismissing the appellant’s complaint, the appellant through Mr Greene proposed to employ the respondent as a casual or part-time employee. The STS advised that the respondent had to return as a full-time employee unless the parties agree otherwise. On 30 July 2015 the appellant contacted the respondent seeking his agreement to suspending his apprenticeship pending the outcome of this appeal. It applied unsuccessfully to the review panel for the apprenticeship to be suspended. Its appeal to this Tribunal on relation to that matter has been resolved by agreement between the parties as described earlier in this decision.

27. Mr Hayden attached to his statement electrical rosters for August and September 2015 which he said showed new full-time overhead wiring (OHW) employees, including one who was doing the same apprenticeship as the respondent. Mr Hayden also said that other employees had advised him that more OHW employees were being brought on under SRO from projects outside NSW to work full-time due to the increase in work that is scheduled for 2016 and beyond “and has been ever since (the respondent) was made redundant”. He also attached the July 2015 roster which he said “shows fewer employees rostered to work than in the” August and September 2015 rosters “which indicates to me an increase in full-time OHW employees”.

28. I find that Mr Hayden’s evidence based on the rosters supports the conclusion that there was an increase in full-time OHW in August and September 2015. I give little weight to his evidence based on comments from other people.

29. The respondent’s claim that he was working an average of 80 hours a week before he was made redundant is not supported by the pay records he provided. He conceded that his claim was not correct during cross-examination. Mr Greene attached a spreadsheet to his affidavit sworn on 12 November 2015 which shows that the respondent worked an average of 14.5 hours’ overtime per week and an average of 46.9 hours in total per week. I accept Mr Greene’s evidence.

30. The evidence of both the appellant and Mr Hayden indicates that the work from August/September 2015 had increased; that is, there had been less work previously.

31. Mr Greene’s evidence (Exhibits A and B) included the following:

• A description of the respondent’s Rail Operations business in Australia.

• The business conditions applying in late 2014 and early 2015.

• Consequently, the decision was made to make redundant 15 OHW employees across the national business during that period, including 4 in the SRO.

• In making those 4 positions redundant, the appellant decided to keep 9 of the 11 OHW apprentices across the Rail Traction and Rail Distribution apprentices engaged in Sydney.

• The appellant checked with a competitor, the only other provider of OHW services in NSW, to see whether its operations could engage or have a position for the appellant’s Linesmen Apprentices who had been suspended due to lack of work. The email making that inquiry was dated 9 February 2015.

• A description of the redundancy process, with reference to relevant provisions of the EA, including reference to the five letters of warning sent to the respondent on 25 July 2013, 13 September 2013, 31 July 2014, 29 August 2014, and the final letter of warning on 16 January 2015.

32. The letters of warning and the respondent’s evidence that he did not trust the appellant show that the employer/employee relationship was fractured by the time the respondent was made redundant.

33. Of relevance to this decision are the following matters referred to in the warning letters:

• On 5 September 2013 the respondent failed to attend his scheduled training as part of his apprenticeship and did not advise the appellant that he was unable to attend.

• On 12 August 2014 the respondent did not attend the pre-assessment tutorial arranged by Hunter TAFE and on 13 August Hunter TAFE reported that he left class early and did not complete a scheduled practical assessment. TAFE advised that this was not the first time he had behaved in that way, which resulted in the respondent being two assessments behind.

34. Mr Greene’s evidence also described the current business conditions, including that the appellant had recently made redundant six track-workers in the Hunter Valley and in the week before 12 November 2015 had announced that there would be between 30 and 50 employees made redundant nationally, and responded to various comments the respondent made in his statement.

35. The respondent’s claims that there was not a shortage of work in SRO and overhead wiring works has picked up is based on his observations and assessment and hearsay remarks of others. I prefer the evidence of Mr Greene which is detailed and comprehensive. I find that the allocation of the appellant’s workforce is done on a nation-wide basis, not on a single operation such as SRO. The respondent’s evidence was more narrowly focussed on what was happening in Sydney.

36. Based on the evidence of Mr Greene, I find that the redundancies in SRO were made because of reduced work. As pointed out earlier in this decision, the evidence of Mr Hayden and the respondent was that work had increased from about August/September. That is, that there had been less work before that time.

37. Although I am considering whether to waive the requirement for consent to the cancellation of the respondent’s apprenticeship as of the date of this decision, the issue framed by the parties was whether the redundancy made on 2 February 2015 was a true redundancy. That is, I am confined to considering the circumstances known at that time. What has happened since that is not relevant to that question.

38. In relation to the first question, I find that based on the business conditions on 2 February 2015 the appellant was justified in making the redundancies it did on 30 January 2015 and 2 February 2015. As Mr Hayden acknowledged, work was drying up. There was not enough work to keep the four employees who were made redundant.

39. A related question pressed on behalf of the respondent is whether the respondent’s redundancy was a “genuine redundancy” within the meaning of the FWA, a Commonwealth statute. The FWA is concerned with unfair dismissal as defined in that Act. I am not. I am concerned with whether consent to the cancellation of an apprenticeship should be waived under a different State statute. In my opinion it is unnecessary to answer the question posed on behalf of the respondent. However, in case I am wrong, I proceed to make the relevant findings required by s 389 of the FWA.

40. For the reasons given above, I accept Mr Greene’s evidence. I find that as required by s 389(a) the appellant no longer required the respondent’s job to be performed by anyone because of changes in the operational requirements of the appellant’s enterprise, that is, reduced work.

41. The appellant argued that the respondent had not complied with an obligation in the EA to consult about the redundancy. Mr Costa relied on part 7.4 of the EA, “General Consultation”. The part required the “Company” to establish a consultative committee “for the effective communication between the Parties” “on a Company or as required on a site by site basis as a forum for the effective communication between the parties”. It provides for the constitution of that committee and its role, which included “(c) Facilitate the process of workplace reform through consultation”.

42. Following those provisions is the paragraph:

Ensure Employees are properly consulted in respect of issues impacting on their wages, working conditions and job security/redundancy the Secretary of the AWU/RTBU/ETU or nominee, and Senior Management of the Company, will have a standing invitation to attend Consultative Committee meetings.

43. In my view, that paragraph does not define an additional role of the committee. Rather, it establishes a standing invitation to a representative of a union and senior management of the Company to attend a committee meeting to ensure proper consultation with employees about the issues listed.

44. Mr Costa argued that the redundancy of four employees was a major change and was subject to the provisions of part 7.4.1 of the EA requiring consultation and specifying how that was done. Clause 2 provides for an employee to nominate a representative for the process. The evidence before me on this issue was not detailed. However, based on the evidence of Mr Hayden, I am not prepared to find that there was no consultation as Mr Costa contended. Mr Hayden was representing the employees who were made redundant and he knew that redundancies were being made but did not press for the names of those who were going to be made redundant.

45. Mr Hayden did not assert at the time of the redundancies in January/February 2015 that the EA had not been complied with. He could have done so after receiving the email of 20 January 2015. He accepted that each redundant employee had not been given actual notice but was paid in lieu and he did not raise a concern about that. He did not claim that the EA had not been complied with in his statement or during his oral evidence. That is consistent with my finding that I am not satisfied that the EA had not been complied with.

46. A redundancy is not a genuine redundancy if “it would have been reasonable in all the circumstances, for the person to be redeployed with the employer’s enterprise or an enterprise of an associated entity of the employer” (s. 389(2)). Based on the evidence of Mr Greene, I find that it was not reasonable in the circumstances to have redeployed the respondent in the respondent’s enterprise or an enterprise of an associated entity.

47. For those reasons, I do not accept that the respondent’s redundancy was not a “genuine redundancy” within the meaning of the FWA.

48. Another question that is raised on the evidence is whether I should waive the requirement for cancellation of the apprenticeship based on the facts as I find them at the date of decision.

49. For the reasons given above, I accept Mr Greene’s evidence about the appellant’s operations. I accept that there is not currently or in the foreseeable future sufficient work to enable the appellant to meet its obligations to employ the respondent in a full-time job and train him as required by the apprenticeship agreement.

43. In making that finding, I have taken into account how much longer the respondent has to serve in his apprenticeship. He included in his statement a Transcript of Academic Record dated 2 July 2015. It shows that he has completed 12 units of study. One unit was identified as “Not yet competent”. The respondent gave oral evidence that he believes that he has only to do module based work on the job which will take only six or seven months. He said that he had completed another two units since the date of the transcript.

44. Mr Slattery’s evidence addressed a core subject that the respondent had failed twice. TAFE had advised that it could conduct an informal practical test to determine if the respondent was capable of passing the unit and could provide extra tuition to the respondent on 19 October 2015 which the respondent had advised he would attend. The respondent gave evidence that something was happening about that and claimed that TAFE has not declined to allow him to continue his course and therefore it was not relevant to these proceedings.

45. I do not have reliable evidence as to how long it would take the respondent to finish his apprenticeship. I do not accept his claim that it is only six or seven months away. I found the respondent’s evidence exaggerated, unreliable and self-serving. For example, as discussed earlier in this decision, he claimed he had worked 80 hours a week which was not supported by the pay records he provided.

46. Another example of the respondent’s unreliable evidence was his claim that he began employment with the appellant on a casual basis in July 2012 and commenced full-time work on 7 October 2012. During cross-examination he conceded that he had been employed on a casual basis from October 2012, based on the spread-sheet Mr Green attached to his affidavit.

47. There was no documentary evidence supporting his having commenced work in July 2012. If he had, I would have expected that there would have been available pay records reflecting that. None was provided. I accept Mr Slattery’s understanding of the application for employment, attachment 1 to the respondent’s statement. It referred to casual employment beginning 7 October 2012. The parties agree that the respondent commenced a full-time apprenticeship on or about 3 May 2013.

48. For the above reasons, I set aside the decision under review and direct that the requirement for the respondent’s consent to the cancellation of the apprenticeship referred to in s 39(3) of the Apprenticeship and Traineeship Act 2001 be waived.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 March 2016