Maria Tino v Regis Resources Ltd

[2014] FWC 8475

[2014] FWC 8475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Tino
v
Regis Resources Ltd
(U2014/3574)

DEPUTY PRESIDENT MCCARTHY PERTH, 1 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This matter was referred to me to deal with following an appeal decision of a Full Bench of the Fair Work Commission (the FWC) on 29 August 2014. 1

[2] The Fair Work Act 2009 (the FW Act) provides that a person has been unfairly dismissed if the FWC is satisfied that the dismissal was not a case of genuine redundancy 2. Whether a dismissal was a case of a genuine redundancy is dependent on whether the requirements of s.389 of the FW Act are satisfied. Those requirements are factual matters that need to be determined. If there is a dispute as to the facts about whether the requirements have been satisfied the FWC is also obliged to conduct a conference or hold a hearing.³

[3] There are two broad elements of s.389. These elements have been described as an inclusive element and an exclusive element⁴. The inclusive element is the requirements of s.389(1). The exclusive element is the requirements of s.389(2). If the requirements of s.389(1) are satisfied the dismissal must be regarded as a genuine redundancy. But if the requirements of s.389(2) are not satisfied the dismissal is excluded from being a genuine redundancy where it otherwise would have been. Consideration of the meeting of the requirements of s.389(2) is only necessary if the dismissal has satisfied the requirements of s.389(1).

[4] The requirements of s.389(1) also has two conditions. Firstly the person’s job must no longer be required to be performed by anyone and the reason for that situation is because of changes in the operational requirements of the employer’s enterprise. The second condition of s.389(1) is that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[5] The condition to be satisfied in s.389(1) is thus that the employer has complied with any obligation in a modern award or enterprise agreement to consult. Here it is not in dispute that the Clerks-Private Sector Award 2010 (the Clerks Award) applied to the employment of the Applicant. The obligation that the Clerks Award must provide for in order for it to have application here is for there to be an obligation to consult about the redundancy. The first question is thus whether such an obligation does exist in the Clerks Award. If it does then the issue becomes one of whether that obligation has been met by the employer.

[6] The Consultation Clause in the Clerks Award is a standard provision found in identical terms in most Awards. It is generally accepted, and it was not argued to the contrary here, that a Consultation Clause of the type in the Clerks Award is one that satisfies the description of an obligation to consult about redundancy and thus is a requirement of the type prescribed by s.389(1). If the award provision did not provide for an obligation to consult about the redundancy then there are no obligations to consult by operation of s.389(1). The issue in this matter then was whether the obligations prescribed by the Clerks Award were met.

[7] The relevant clause in the Clerks Award provides as follows:

“8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

8.2 Consultation about changes to rosters or hours of work

...”

[8] It can be seen that the Clause consists of two subclauses, the first is headed with “Consultation regarding major workplace change” and the second “Consultation about changes to rosters or hours of work”. The second subclause is not relevant for this matter. The relevant provision for this matter is subclause 8.1(a)(i). For it to have application an employer must have made a definite decision to introduce major changes of a particular type. Included in the type of decisions is where there is a decision taken that a job is redundant. If that circumstance exists then various obligations arise.

[9] The obligation that arises from subclause 8.1(a)(i) is that the employer must “notify” the employees who may be affected by the proposed changes. The ordinary meaning of “notify” is to make known, inform, announce. The Oxford Dictionary defines “notify” as:

1. to give notice to, or inform, of something.

2. to make known; give information of: the sale was notified in the newspapers.

[10] There is no other active verb in the subclause other than “notify”. Thus, there is nothing else in the subclause that creates any other obligation. The only other obligation associated with the notifying is who must be notified and what the notification is to be.

[11] Subclause 8.1(a)(ii) is definitional and is not contentious here.

[12] Another obligation arises from subclause 8.1(b)(i). The employer must “discuss” various matters. The Oxford Dictionary defines “discuss” as:

1. to examine by argument; sift the considerations for and against; debate; talk over.

[13] The discussion must be with the employees affected and the discussion must be about (i) the introduction of the changes (ii) the effects of the changes on employees and (iii) measures to avert or mitigate the adverse effects of such changes on employees.

[14] As a consequence of the discussions if the employee raises matters “in relation to the changes” another obligation arises. The obligation is that the employer must “give consideration” to those “matters” and must do so “promptly”.

[15] The active verbs in all of the subclauses in the award that give rise to the obligations of the employer then are “notify”, “discuss” and “consider”. Whilst the heading of the clause is “Consultation” there is nothing in the subclauses that gives rise to any obligation other than those of notifying, discussing and considering. Furthermore, what must be notified, what must be discussed and what must be considered is identified by the express terms of the clause.

[16] In summary these obligations are a sequential series of actions viz; (a) once a decision is made there is an obligation to notify employees effected of what the decision is; (b) once the notification is given there is an obligation to discuss with employees affected the implementation of the decision and any measures to avert and mitigate the effects of that decision; and (c) if during the discussion there are matters raised by employees those matters must be considered by the employer.

[17] Here the Applicant seemed to confuse the obligations to “consult” in s.389(1) and the meeting of that obligation through complying with what the award provides. The confusion seems to arise from the loose and interchangeable use of the word consult with those that are used in the award such as “notify”, “discuss” and “consider”. Importantly there is no obligation whatsoever in the award to consult over whether the decision made by the employer should be changed. The meeting of the award obligations requires only applying the ordinary meaning of the words actually used in the award itself. The word “consult” is not used in anything other than the heading to the Clause, except for that part of the clause that is not relevant here (when there are changes to rosters and the like).

[18] A number of Full Bench decisions of FWC and its predecessors were referred to. Care needs to be taken when referring to some of those decisions as they involved obligations that were provided for in particular enterprise agreements. It is dangerous to attribute meanings to the consultation clause such as the one in the Clerks Award by examining decisions concerning the meeting of enterprise agreement obligations, or any other instruments especially those from other jurisdictions.

[19] A case relied upon and referred to by both parties is the Ulan Coal case. In Ulan Coal the Full Bench was concerned with the application of the Ulan Coal Mines Underground Mine Enterprise Agreement 2006 (the Ulan Coal Agreement) in meeting the obligations of s.389 of the FW Act. The provision in the Ulan Coal Agreement⁵ whilst similar to the clause in the Clerks Award has some important differences. Firstly, the Ulan Coal Agreement refers to circumstances where a decision “may lead to termination of employment” that “discussions” are required to be held. Secondly, the obligation “invoke[d] the needs for consultation”. Thirdly, the consultations were directed at “reasons for the proposed terminations”. Fourthly, and most importantly consultations required “measures to avoid or minimise the terminations”.Fifthly, the matter required consultation about “measures to mitigate any adverse effects of any terminations on the employees concerned”. 6 Importantly the Full Bench noted that: “The decision [under appeal] is described in the sub-clause as one which “may” lead to termination of employment (par 23.1(1)) and the discussions to be held will include consideration of the reasons for “proposed terminations” and measures to “avoid or minimise the terminations” (par 23.1(2)).”7There are no identical requirements or obligations in the Clerks Award clause. The Ulan Coal Agreement requires consultation about the reasons for proposed terminations and capacity to change the decision. No similar requirements exist in the Clerks Award provisions.

[20] Another decision that was referred to was the Newcastle Wallsend case⁸. The issue under consideration there was the application of s.170GA of the Workplace Relations Act 1996 (the WR Act). Section 170GA of the WR Act dealt with circumstances where an employer had decided to terminate the employment of 15 or more employees. If that occurred then the Australian Industrial Relations Commission had the power to revoke terminations of employment if the employer had not notified unions and “consulted” with those unions about the terminations. Whilst s.389(1) of the FW Act is similar to s.170GA of the WR Act it is in a different context and with a different purpose.

[21] Another Full Bench decision often cited is the QR case⁹. There the instrument being considered was not the standard Termination Change and Redundancy (TCR) Clause but rather an identical provision in twenty agreements that covered QR Limited. The Agreement used for the purpose of considering the obligations of QR Rail was the QR Limited Traincrew Union Collective Workplace Agreement 2009. The relevant clause in that agreement was headed “36. Consultation”. The clause is very comprehensive and bears little resemblance to the standard TCR clause. It defines what consultation is and what consultation must be about. Importantly it includes the aim of consultation to be “aimed at getting individuals or groups to suggest a response to proposals to be implemented without at the same time giving up managements rights to make a final decision ...”. There is no similar obligation or even similar wording in the clause involved here. Indeed the comprehensive nature of the clause in the QR case seems to have a substantially different purpose most likely directed at consultation obligations where there were proposals regarding contracting out various functions to other employers or contractors.

[22] The most recent Full Bench dealing with the meeting of s.389 obligations was Ventyx Pty Ltd v Murray (Ventyx)¹⁰. Ventyx was concerned with the obligations required by the consultation clause in the Professional Employees Award 2010. The provisions in that award are identical to those in the Clerks Award.

[23] There the Full Bench noted that:

“The Deputy President [who dealt with the matter under appeal] appears to have evaluated the conduct of Ventyx for purposes of s.389(1)(b) of the Act against the standard that an employee must be given an opportunity to change the decision made by the employer.”11

[24] The Full Bench proceeded to find that:

“Clause 9.1(b)(i) of the award does not require an employer to provide an opportunity for the employee to change the definite decision it has made. The award obligation, instead, requires the employer to discuss certain prescribed matters (the introduction of the changes, the likely effects of the changes, and to consider measures to mitigate the adverse effects of such changes).

So far as the Deputy President used language that re-formulated the obligation under clause 9.1(b)(i) of the award (to mean the employer was obliged to give an employee an opportunity to change its decision), she fell into error.”¹²

[25] Finally in Ventyx the Full bench found:

“Here the award clause makes it clear that the discussions must be about the “expected effects on employees (who may be affected) of the proposed changes.”13

[26] I agree with and will adopt the approach in Ventyx¹⁴. It is the relevant and appropriate authority to follow here. The issues to consider here then are quite simple. Did the employer fulfill the obligations of “notifying”, “discussing” and “considering”. The only contested issue here is the meeting of the second and third obligations.

[27] The questions that arise here in considering whether there was a genuine redundancy by application of s.389 then are:

● Was the job that the Applicant performing made redundant?
● Was the Applicant notified of the decision to make her job redundant and was that notification as soon as was practicable after the decision had been made?
● Did the Respondent discuss with the Applicant (i) the effects of the changes; and (ii) measures to avert or mitigate the adverse effects of the changes? and
● Did the Respondent give prompt consideration to any matters raised by the Applicant?

Was the job that the Applicant was performing made redundant?

[28] The evidence established that:

● The Applicant was employed at the Employer’s Garden Well Mine (GWM) which is one of three goldmines comprising the Duketon Gold Project.

● In August 2013, Mr Brian Wyatt was appointed Registered Manager/General Manager for GWM. On his appointment, Mr Wyatt was required to undertake an organisational review of GWM.

● Between September and December 2013, Mr Wyatt undertook the organisational review with a particular focus on staffing levels.

● Mr Wyatt identified during the organisational review that GWM was operating with eight (8) site administration staff, whereas the other two mine sites were successfully operating with three (3) site administration staff. Mr Wyatt came to the conclusion that GWM could operate with four (4) site administration staff.

● On or about 11 December 2013, Ms Charlee Hately, Regis’ Site Administration Superintendent, for the Respondent advised Ms Rebecca Botten, Human Resources and Office Coordinator for the Respondent that, as a result of Mr Wyatt’s organisational review, the position of Site Accounts Administrator was to be abolished.

[29] The functions that were being performed in the role the Applicant occupied were redistributed amongst other employees. I find that the position that the Applicant had been working in was made redundant.

Was the Applicant notified of the decision to make her job redundant?

[30] The decision to make the Applicant’s position redundant was made on Wednesday, 11 December 2013. After that decision was made the Respondent explored whether there were any other suitable positions for the Applicant to be employed in. They found that there were not any. The Respondent also reviewed the redundancy entitlements of the Applicant. The matters being considered together with an intervening weekend meant that the Applicant was not notified of the decision until 16 December 2014.

[31] I find that the Applicant was notified that her position had been made redundancy and that she was to be dismissed. I also find that the notification was as soon as was reasonably practicable after the decision had been made.

Did the Respondent discuss with the Applicant (i) the effects of the changes and (ii) measures to avert or mitigate the adverse effects of the changes?

[32] In discussions with the Applicant on 16 December 2013 the Respondent canvassed with the Applicant their efforts to find a suitable alternative position but they had been unsuccessful. The Applicant was informed that she was to be dismissed.

[33] It was also discussed with the Applicant on 16 December 2013 that she could continue working until the end of her swing. She was also informed that she could consider leaving the mine site that day. The end of the Applicant’s normal swing was 31 December 2013 and she was informed that regardless of whether she worked it or left immediately she would be paid until 31 December 2013.

[34] I find that the Respondent discussed the effects of the changes with the Applicant and also discussed measures to avert or mitigate the adverse effects of the changes.

Did the Respondent give prompt consideration to any matters raised by the Applicant?

[35] There was nothing in the evidence that established that the Applicant raised anything on 16 December 2013 that required consideration to be given to it by the Respondent.

Conclusions and finding

[36] I have found above that the Respondent had notified the Applicant of the decision to make her position redundant and that she was to be dismissed as a consequence of that decision.

[37] I have also found that the Respondent had held discussions about the effects of the decision and that the discussions involved the canvassing of matters that could mitigate the adverse effects of the decision. I have also found that the Applicant did not raise any matters that the Respondent needed to give consideration to.

[38] I therefore find that the Respondent complied with their obligations under the Clerks Award and as a consequence fulfilled their obligations under s.389(1) of the FW Act.

[39] I also find that the evidence established that it would not have been reasonable in all of the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or any associated entity.

[40] I therefore find that the dismissal of the Applicant was the result of a genuine redundancy. As a consequence the application cannot be regarded as an unfair dismissal. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

R Jones of Atwick Ferres for the Applicant.

D Paton of Corrs Chambers Westgarth Lawyers for the Respondent.

Hearing details:

2014.

Perth:

November, 13.

Final written submissions:

Applicant, 14 November 2014.

 1   [2014] FWCFB 5358.

 2 s.385(d) of the Fair Work Act 2009.

3 s.397 Ibid.

4 see Ulan Coal Mines Limited v Howarth & Ors [2010] FWAFB 3488 (Ulan Coal).

⁵ “Discussion Before Terminations:

Where the Company has made a definite decision that the Company no longer wishes the job the employee has been doing, done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the Company will hold discussions with the employees directly affected and with the employee’s representative.

The discussions will take place as soon as is practicable after the Company has made a definite decision which will invoke the needs for consultation and include any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

For the purposes of the discussion the Company will, as soon as practicable, provide in writing to the employees concerned and their representatives, all relevant information about the proposed termination including the reasons for the proposed terminations, the number and classification of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out, provided that the Company will not be required to disclose confidential information.

Should the redundancy of employees be necessary over the life of this agreement the Company will first exhaust voluntary redundancies prior to implementing forced redundancies. Where it is necessary to implement forced redundancies the Company will select employees for redundancy having regard to the needs of the business. Where as a result of discussions and the needs of the business are satisfied, seniority will apply to forced redundancies.”

 6   Ulan Coal Case paragraph [22].

 7 Ibid paragraph [28].

8 Construction, Forestry, Mining & Energy Union v Newcastle Wallsend Coal Co Ltd (1988) 88 IR 202 (Newcastle Wallsend).

⁹ Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 268 ALR 514 (QR case).

10 Ventyx Pty Ltd v Murray[2014] FWCFB 2143 (Ventyx).

11 Ibid [42].

12 Ibid [45]-[46].

13 Ibid [53].

¹⁴ See also Barnes J of the Federal Circuit Court in Ingersole v Castle Hill Country Club Limited [2014] FCCA 450 cited with approval in Ventyx.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558250>