Martin Newby v Westpac Banking Corporation

[2022] FWC 2767

[2022] FWC 2767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Martin Newby
v

Westpac Banking Corporation

(C2022/5537)

DEPUTY PRESIDENT CROSS SYDNEY, 14 NOVEMBER 2022

Application to deal with dispute; Alleged dispute about any matters arising under the enterprise agreement; redundancy; comparable role.

1. This dispute concerns a dispute notification (the Application) by Mr Martin Newby (the Applicant), regarding the refusal by Westpac Banking Corporation (the Respondent/Westpac) to declare his role redundant, and their requirement that he redeploy to a role the Applicant claimed was not comparable, pursuant to Clause 47 of the Westpac Group Enterprise Agreement 2019 (the Agreement).

1. Clause 47 of the Agreement provides:

47. What happens if my role is redundant?

WHAT IS REDUNDANCY, REDEPLOYMENT AND RETRENCHMENT?

47.1 Redundancy: This means we no longer require the work you do in your role (or most of the work that you do) to be done by anyone within a reasonable commuting distance as a result of a re-organisation, changed business practice, technological change or a business downturn.

47.2 Redeployment: This is the process by which we will work with you to explore opportunities for you to move to other roles across Westpac Group if your role is redundant.

47.3 Retrenchment: This is the termination of employment as a result of redundancy where a suitable alternative role is not available within Westpac Group or where you have declined an offer of acceptable alternative employment.

MORE INFORMATION ABOUT REDEPLOYMENT

47.4 What is the general principle of redeployment? If your role is redundant we will make all reasonable efforts to redeploy you to a directly comparable role. To assist redeployment we will maximise opportunities from normal staff turnover and limit other recruitment where possible. A senior manager (normally at the General Manager level or equivalent) will need to give approval before roles are filled by external candidates. Unless otherwise agreed, redeployment will commence from the date that your role has been formally notified as redundant.

47.5 Exploring redeployment options: The redeployment process will involve exploring redeployment options for you. Options that are available include:

- applying for available vacancies;

- direct appointment to a directly comparable role;

- redeployment to a non-comparable role;

- redeployment to a development position (eg, a role to develop certain skills and competencies); and

- change of mode (eg, changing to a different type of employment – such as moving from a full time role to a part time role).

You are encouraged to let us know your preferences to assist this process. This allows us to understand your current personal circumstances and role preferences throughout Westpac Group (including whether your preference is for retrenchment). Although we will consider preferences, we do not make our decision solely on the basis of your preferences. The final decision for redundancy or retrenchment always rests with us, and if your role becomes redundant, our first priority is to explore all redeployment opportunities before moving to retrenchment.

47.6 Length of the redeployment period: Unless we otherwise agree, redeployment will continue for a maximum period of up to 3 months (exclusive of notice of retrenchment), or up to 6 months if you are returning from an overseas role.

47.7 Do you want a case manager? You will have a case manager during redeployment. You may also request that a case manager is assigned to you if we have told you that your role might be redundant but you are not yet in redeployment.

REDEPLOYMENT TO A DIRECTLY COMPARABLE ROLE

47.8 Redeployment to a directly comparable role: We will make all reasonable efforts to redeploy you to a directly comparable role. When we say ‘directly comparable role’ we mean a role that:

-   has at least the same Fixed Pay and other benefits as your existing role;

-   is at the same location, or a location within a reasonable commuting distance as your existing role;

-   has duties that are reasonable having regard to your skills and abilities. We may change the duties of the role so that it matches your skills and abilities; and

-   is not more than 15% Hay points less than your existing role.

If you consider that a role being offered as a directly comparable role is more than 15% Hay points less than your existing role, then your redundant role and proposed role will be evaluated using the Hay job evaluation process.

For grades 1 – 3 the evaluation will be completed by the Joint Job Evaluation Committee. For other roles, the evaluation will be completed by Westpac. We will notify you of the Hay point scores following the completion of the evaluation.

47.9 What happens if you do not accept a directly comparable role? If you do not accept a directly comparable role, you will not be entitled to a severance payment, notice or vocational training under this clause (although you will get notice under clause 50 (notice of termination)).

REDEPLOYMENT TO A NON-COMPARABLE ROLE

47.10 Redeployment to a non-comparable role: A ‘non-comparable role’ means a role that isn’t a ‘directly comparable role’. You may be offered a non-comparable role on an offer and acceptance basis and you will have 14 days to decide to accept or reject the role. If you accept redeployment to a non-comparable role, you will be appointed on an 8 week trial period from the date you start in the role. During the trial period you and your manager should discuss whether you want to continue in the role. If either party decides the role is unsuitable then redeployment will continue and retrenchment may follow. If at the end of the trial period you are still in the role, you will be taken to have accepted redeployment to the role.

1. There was no issue as to whether the dispute related to a matter arising under the Agreement, nor that the requisite steps in the disputes procedure clause had been followed.

1. The Respondent accepted that:

a)   The Fair Work Commission (the Commission) has jurisdiction to determine the dispute by arbitration (s.739(4) of the Act);

b)   The Commission is not precluded from dealing with the dispute; and

c)   The Applicant is covered by the Agreement and has standing to agitate the dispute in the Commission.

1. The Respondent maintained that the Applicant had been redeployed to a directly comparable role, and he is not entitled to a severance payment.

The Evidence

1. At the directions hearing conducted in this matter on 29 August 2022, I issued directions for the filing and service of evidence and outlines of submissions.

1. The following materials were filed:

(a)       For the Applicant:

·A document titled Outline of Submissions, which consisted of both evidence and submissions, was filed on 14 September 2022; and

·A document titled Applicant’s Reply to the Respondents Outline of Submissions, Witness Statements, and Filed Materials 2022, which also consisted of both evidence and submissions, and was considerably more detailed than the previously filed Outline of Submissions, was filed on 6 October 2022.

(b)       For the Respondent, an Outline of submissions was filed, and the following persons provided witness statements in the proceeding, all dated 28 September 2022:

·Ms Hayley James, Head of Human Resources Business Partner, Customer Service Team and Corporate Services of the Respondent;

·Mr Michael Phillips, Head of Enterprise Compute and Storage Services of the Respondent; and

·Mr Geoff McQueen, Service Owner, Data Centre Services of the Respondent.

1. The Applicant, and all deponents of statements for the Respondent were cross-examined. After receipt and testing of the evidence there were only a limited number of factual disputes between the parties. The determination of those factual disputes is undertaken in circumstances where those facts relate to the various issues for determination.

The Evidence of Newby

1. Mr Newby was clearly aware of possible weaknesses is his claim, and based on my observation of him giving evidence at the hearing of the matter, I find he sought to tailor his evidence, both written and oral, to suit the case that he thought would most likely result in his receiving a redundancy payment, rather than evidence of what in fact occurred. As a consequence, where the evidence of Mr Newby differed from any of the evidence of the Respondent, I have preferred the evidence of the Respondent’s witnesses, who gave clear, candid and responsive evidence.

Background Facts

1. The Applicant is currently employed by the Respondent as Operations Infrastructure Manager, Data Centre Services (DCS) (the New Role), which is a sub-division of the Respondent’s Chief Operating Office (CST) Infrastructure and Service Management team.

1. The Applicant was previously employed by the Respondent as Infrastructure Services Specialist, Systems Operations (SysOps) (the Old Role), which was a sub-division of the CST Infrastructure and Service Management team.

1. In February and/or March 2021, the Respondent commenced consultation regarding a proposed restructure of the CST Infrastructure and Service Management team. The proposed restructure involved making the SysOps team redundant, which included the Applicant’s role. On 4 March 2021 Westpac communicated to affected employees, including the Applicant, that it was proceeding with the proposed restructure. The Applicant was advised that his role was redundant and that his six-week redeployment period would commence on 8 March 2021.

1. In about early April 2021, the Applicant expressed interest in pursuing an opportunity in the DCS team. The Applicant was identified as being suitable for the New Role of Operations Infrastructure Manager in the DCS team.

1. While the Respondent was recruiting the DCS team, the Applicant was asked and agreed to assist the Respondent’s Service Operations team to transition Batch Scheduling and Operations to TATA Consultancy Services. The Applicant’s redeployment period was extended from 16 April to 14 May 2021 to finalise the transition work. The Applicant asserts that this extension was a continuation of the transition work that he oversaw in the Old Role.

1. On 13 May 2021, the Applicant was offered redeployment to the New Role. The Applicant accepted the offer of employment. In particular, on 12 May 2021, the Applicant received an email from the HR system to Approve or Reject a Pre-identified Transfer to the New Role. He approved this workflow email and the subsequent Task Sign Transfer Letter email on 13 May 2021. In his submissions filed in reply, and at the hearing of the matter, the Applicant submitted that he entered into the New Role on a trial basis.

1. The Applicant claimed that he later realised that no Letter of Offer had been circulated to him as part of the transfer or at any other time.

1. The Applicant undertook an 11-week internal secondment while the Respondent progressed the DCS recruitment. At the end of the secondment, the Applicant took a period of annual leave, and following his return to work in mid-August 2021, he started work on process development for the new DCS team. The Applicant claimed he was only able to gain proper visibility of the scope of work in the New Role from August 2021, and as more information became available to him it became apparent that the New Role was not aligned with his skills and abilities.

1. The Applicant, or his People Leader Mr Saran, first raised concerns about the comparability of the Old Role and his engagement in the New Role on 20 October 2021. The Applicant sought to revert to separation instead of redeployment. On 18 November 2021, the Applicant, or his People Leader Mr Saran, escalated his concern regarding role comparability to Ms James, in accordance with stage two of Westpac’s dispute resolution process, as is set out in clause 45.1 of the Agreement.

1. Ms James requested a Hay point evaluation of comparability through the Respondent’s Job Evaluation Committee. The outcome of this evaluation was that the Old Role and the New Role were deemed directly comparable. That conclusion was communicated to the Applicant on 20 December 2021.

1. On 2 March 2022, the Applicant lodged a written grievance regarding the above review conducted by Ms James. A desktop review of the grievance was undertaken by Emma-Louise Jackson, HR Specialist. On 17 March 2022 Ms Jackson responded to the Applicant’s grievance and advised that she was satisfied that the Respondent had appropriately reviewed his concerns in accordance with clause 47.8 of the Agreement by ensuring the roles were independently evaluated by the Job Evaluation Committee.

1. On 27 April 2022, the Respondent received correspondence from the Finance Sector Union (FSU) on the Applicant’s behalf requesting that the Respondent re-examine the Applicant’s grievance regarding role comparability at stage three of the Respondent’s dispute resolution process. Pursuant to the requirements of stage three of the dispute resolution procedure, Ms Sarah Tobin, General Manager HR, was briefed regarding the FSU’s correspondence. Ms Tobin requested a further Hay point evaluation of the Applicant’s roles to ensure there had been no change to the comparability outcome. The outcome of that Hay point evaluation was that the Applicant’s roles were again deemed comparable.

1. On 30 June 2022, Ms Tobin wrote to the FSU advising that the Applicant had been redeployed to a directly comparable role on the basis that the Applicant’s new role:

(a)       had the same fixed pay and other benefits as the Applicant’s previous role;

(b)had duties that were reasonable having regard to the Applicant’s skills and abilities; and

(c)was 12% Hay Points more than the Applicant’s previous role (less than 15% being considered comparable).

1. On 18 August 2022, the Applicant escalated the dispute to stage four of the Agreement dispute resolution process by way of the Application the basis of this matter.

Applicant’s Submission

1. The Applicant submitted that no communication was made with him at the time of, or during, the change in role regarding the roles being seen as comparable by Westpac, or that there would be any adverse impact on redeployment or retrenchment. Nothing regarding role comparability was communicated to the Applicant until an email from Ms James on 19 November 2021.

1. The change from a Specialist role to a Manager role displayed no indication that the roles would ever be considered as directly-comparable. The Applicant in fact, belatedly, denied receiving the contract for the New Role, and claimed it was for a trial period.

1. The Applicant asserted his skills and abilities are that of a Technical Specialist, specifically in the Operational Support functions of the redundant team, where he started with the Respondent in 2008. He stated he had no other experience outside of that team and its functions. The New Role, being a Manager and People Leader role, has duties that were not reasonable with regards to the Applicants skills and abilities, and so the New Role could not be considered a directly comparable role to the Old Role.

1. The Applicant submitted that no additional training had been provided to address the additional skill requirements for the New Role. Specifically, the Old Role was not a leader role, and the deployment to the New Role that is a leader role had been without training.

1. The Applicant noted the title of the Old Role was that of a “Specialist” and was Grade 3, while the New Role has the title of “Manager” and is Grade 4.

Respondent’s Submission

1. The Respondent submitted that the Applicant was redeployed to a comparable role pursuant to clause 47.8 of the Agreement. In support of that submission, the Respondent noted:

(a)An assessment of the Applicant’s roles was conducted by the Respondent’s Job Evaluation Committee on two occasions, both of which deemed the roles as comparable;

(b)It is not in dispute that the Applicant’s new role has the same remuneration and other benefits as his old role;

(c)The location at which work is to be performed by the Applicant is either the same or within a reasonable commuting distance; and

(d)The only issue between the parties on the issue of comparable role related to the Applicant’s skills and abilities. The Respondent submitted that the New Role has duties that are reasonable having regard to the Applicant’s skills and abilities because:

(i)no substantive additional training was required to assist the Applicant to perform the New Role;

(ii)both the New Role and the Old Role involve the Applicant leading a 24x7 team tasked with responding to incidents and carrying out minor planned/scheduled work; and

(iii)while the nature of the work the team members beneath the Applicant carry out is different, his role and function as a leader are the same.

(e)As the Applicant had been redeployed to a directly comparable role, the Respondent submitted he is not entitled to a severance payment pursuant to clause 47.9 of the Agreement.

Consideration

1. Clause 47.8 deals with what is meant by a “directly comparable role”, and specifies four requirements, all of which must be met for a role to constitute a “directly comparable role”. It is correct to observe that the only requirement at issue in the matter is whether the New Role has duties that are reasonable having regard to the Applicant’s skills and abilities, though it is of note that two Hay point evaluations of the Applicant’s roles have been conducted, and each ensured that the New Role is not 15% Hay points less than the Old Role, as specified in Clause 47.8.

1. Clause 47 of the Agreement is not an unusual provision in the Banking industry, and the Commission has on previous occasions had cause to consider its interpretation. In Garvey v ANZ Banking Group (Garvey),[1] Deputy President Sams considered an Agreement that defined “directly comparable role” as a role which “… does not involve a change in duties significant enough to be unreasonable having regard to the Employee’s skill and ability”. The Deputy President, in addressing whether a reasonable person would have refused redeployment, held:[2]

I shall answer this question shortly, but at this juncture, I summarise the various
principles to be considered in this case.

1. The onus is on the Bank to establish that the new role offered to Ms Garvey is
‘directly comparable’, having regard for the definition of that term in the
Agreement.

2. The test of whether the new role is ‘directly comparable’ to the old one, is an
objective test and not a subjective one from either Ms Garvey’s (personal
preference) or ANZ’s perspective (an avoidance of redundancy obligations).

3. The objective test will be informed by the significance of the changes to Ms
Garvey’s duties in the new role, not by personal hypothetical views of their
impact.

4. Whether the role is ‘unreasonable’ will not ordinarily be measured by reference
to mere feelings of a loss of status, loss of importance to the organisation,
whether the employee dislikes the new role or would not feel comfortable
performing the duties of the new role.

5. Dissatisfaction or discontent with the process of consultation leading to
redundancy or redeployment might be a relevant consideration under the
consultation terms of the Agreement, but it will not necessarily inform the
Commission as to whether the redeployed role is ‘directly comparable’.

6. The Bank’s treatment of other employees in the same position as Ms Garvey
may be a relevant factor in considering all the circumstances relevant to the
dispute.

1. While it may appear that, having accepted the New Role in May 2021, the Applicant may have considerable first-hand experience in the New Role, it became apparent that the Applicant did not commence in the New Role until 2022, and had worked no more than five days in the role in 2022.[3] Accordingly, the submissions of the Applicant related to anticipated differences, rather than experienced differences.

1. The Applicant sought to highlight any identified difference, rather than differences of sufficient significance as to affect the direct comparability of the New Role, and in doing so was prone to highlight personal preferences as opposed to objective differences. One of those identified areas of difference was where the Applicant repeatedly highlighted that the Old Role involved computer software, while the New Role involved computer hardware. While he consistently submitted the roles were not directly comparable, he conceded:[4]

You didn’t need to be a software expert to carry out every element of your old role, did you?  ‑No.

Similarly, you aren’t expected to be a technical hardware specialist in your new role, are you?  ‑Not as a manager, no.

Instead, the role involves collaborating with and engaging members of your team, other business partners and third party suppliers to undertake the required technical work on an as needs basis, would you agree?  ‑Yes.

1. The Applicant also stressed an asserted lack of leadership in the Old Role. His Reply Submission stressed “No team leadership responsibilities were ever defined.” In cross-examination, the Applicant’s evidence was:[5]

Yes. You did have pre-existing leadership skills as at May 2021, didn’t you?  ‑Very very minor. Very minor.

1. The Applicant was then taken to the organisational chart that clearly showed nine staff reporting to the Applicant. After being questioned about the organisational chart the Applicant’s evidence was:[6]

Is it accurate to state that whilst you didn’t, in fact, have team leader or manager in your job title that you did, in fact, have some leadership responsibilities?  ‑Maybe some. Yes.

1. The appropriate focus of the enquiry in this matter is not, however, on whether the Applicant has established his contentions, but rather on whether the Respondent has satisfied the onus to establish that the new role offered to the Applicant is “directly comparable”, having regard for the definition of that term in the Agreement. I consider the Respondent has satisfied that onus.

1. Over and above the twice completed Hay point assessments by the Job Evaluation Committee that established sufficient closeness in assessment, I accept that both the Old Role and the New Role involve the Applicant leading a 24x7 team tasked with responding to incidents and carrying out minor planned/scheduled work.

1. As noted above, both the Old Role and the New Role involve leadership functions, and no substantive additional training, in leadership or otherwise, was required to assist the Applicant to perform the New Role.

1. While the Old Role involved computer software, and the New Role involves computer hardware, I accept the Respondent’s submission that the decision in Papathanasiou v National Australia Bank Limited T/A NAB[7] (Papathanasiou), which involved similar background facts is apposite to the facts at hand. There, Deputy President Bull held:

“The move from an email-based contact team to telephone-based servicing has less impact on the Team Leader role than that of the front line advisers. In any event, the nature of the service being provided is essentially the same as the role of the Team Leader…”

1. Despite the change to the nature of the duties performed by the Applicant’s team, the Applicant had leadership functions in both roles, with each team operating in a similar function.

Conclusion

1. An objective assessment of the New Role establishes that it is sufficiently comparable to the Old Role and is not unreasonably removed from the Applicant’s original duties, skill set, qualifications, experience and other terms and conditions of employment. There is sufficient correlation between the Old Role and the New Role. Accordingly, it is consistent with the Respondent’s right under clause 47.8, Redeployment to a Directly Comparable Position, in the Agreement.

1. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Newby appearing on his own behalf.
D. McLachlan appearing for the respondent.

Hearing details:

2022.
Sydney.
October 7.

[1] [2014] FWC 1095.

[2] Garvey at [102].

[3] Transcript PN 634 and 635.

[4] Transcript PN 285 to 287.

[5] Transcript PN 135.

[6] Transcript PN 154

[7] [2019] FWC 1239 at [56].

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