Maureen Costigan v Stonnington City Council T/A City of Stonnington

[2021] FWC 859

[2021] FWC 859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Maureen Costigan
v
Stonnington City Council T/A City of Stonnington
(C2020/6619)

Local government administration
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 26 APRIL 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Ms Maureen Costigan filed an application with the Fair Work Commission pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with a dispute settlement procedure. Ms Costigan is represented by the Australian Municipal, Administrative, Clerical and Services Union (ASU). The ASU is an industrial association within the meaning of section 12 of the Act and is entitled to represent the industrial interests of Ms Costigan.

[2] The respondent in this matter is Stonnington City Council T/A City of Stonnington (Stonnington).

[3] Ms Costigan made her application after raising a dispute with Stonnington under the Stonnington City Council Enterprise Agreement No. 10/2017 1 (the Agreement). The dispute concerns a decision by Stonnington to introduce a new online fleet management system called ‘Ausfleet’. The introduction of this new online system is alleged to cause Ms Costigan to be redundant.

[4] The ASU and Stonnington conferred and confirmed the question to be determined by the Commission is:

“Would Stonnington City Council be breaching clauses 8.1, 8.2 and 8.4 of the Stonnington City Council Enterprise Agreement No. 10/2017 if it proceeded with the termination of the employment of Maureen Costigan by reason of the redundancy of her position as Fleet Administration Officer?”

[5] The present application was subject of a conference held before the Commission in September 2020, the matter remained unresolved. Directions were issued and the parties filed materials in advance of a hearing on 17 November 2020.

[6] Ms Predic from the ASU represented Ms Costigan and Ms Costigan gave evidence on her own behalf and the witness statement of Ms Emma Bagg, ASU Organiser, was admitted without objection. Mr Katz of Meerkin & Apel Lawyers was granted permission to represent Stonnington. The following witnesses gave evidence on behalf of Stonnington:

•  Mr Andrew Kirk, Fleet Management Coordinator,

•  Mr Noel Kiernan, Manager of City Operations,

•  Mr Rick Kwasek, Director of Environment & Infrastructure,

•  Ms Zoe Robinson, People Business Partner.

Submissions and Evidence

[7] Ms Costigan has been employed by Stonnington as a Fleet Administration Officer since 1997.

[8] The present dispute rises from a decision by Stonnington to introduce a new online fleet management system called Ausfleet which it says will result in Ms Costigan’s position being made redundant.

[9] Prior to the implementation of Ausfleet Stonnington analysed the functions and tasks that Ms Costigan performed and determined that Ms Costigan’s position would no longer be required. On 18 May 2020 Stonnington informed Ms Costigan that her position would be made redundant due to the implementation of Ausfleet.

[10] During the consultation process Ms Costigan was represented by the ASU. The ASU then placed the matter in dispute on 26 May 2020 and the parties continued to engage in further discussions.

[11] On 26 August 2020 Stonnington confirmed that there were no suitable redeployment opportunities available to Ms Costigan and that her position would be made redundant. Notwithstanding, the ASU continued to raise concerns about the proposed redundancy and subsequently lodged an application with the Commission

[12] Ms Costigan submits if Stonnington proceeds with the redundancy it will be in breach of clause 8.1 of the Agreement due to an “artificial restructure” of her position.

[13] Ms Costigan further submits that Stonnington will be in breach of clause 8.1 as it had failed to provide retraining opportunities to ensure her job security. Ms Costigan also submits that Stonnington will be in breach of clauses 8.2 and 8.4 for failing to exhaust all redeployment options.

Artificial restructure

[14] Ms Costigan submits if Stonnington proceeds with the termination of her employment by way of redundancy it will be in breach of clause 8.1 as the Council will have participated in an artificial restructure. 2

[15] Stonnington submit on any reading or interpretation of clause 8.1.3 of the Agreement, Ms Costigan’s role is genuinely redundant due to the operational requirements and the bona fide redundancy cannot be described as “artificial restructuring”. 3

[16] Ms Costigan submits she does not challenge Stonnington’s prerogative to introduce the new Fleet Management System and does not allege that the introduction of Ausfleet itself was a ‘mere sham or contrivance’. Ms Costigan challenges the analysis undertaken by Stonnington as to how the system would impact Ms Costigan’s position submitting that the number of tasks to be reallocated and the percentage of time the remaining tasks will take to complete in their restructure of Ms Costigan’s position is incorrect.

[17] Ms Costigan submits the misrepresentation of tasks and time allocation amounts to a sham or contrivance and therefore is an artificial restructure as contemplated by clause 8.1.3 of the Agreement.

[18] Stonnington submit that for Ms Costigan to succeed in her application she will have to establish that the restructure was not genuine or bona fide but rather a “mere sham or contrivance”. Stonnington submit in order to establish such a “sham or contrivance” Ms Costigan must identify some unlawful motive or malfeasance on the part of Stonnington targeted at her in order for them to achieve the proposed redundancy of the position. 4

[19] Ms Costigan rejects Stonnington’s submission and argues that for the purpose of this application, Ms Costigan is required to demonstrate that there was a breach of the Agreement, not the reason for which the breach has occurred. That is, Ms Costigan is not required to present evidence of the reasons for Stonnington’s breach. 5

[20] Ms Costigan submits the formulation of the time percentage breakdown of her role – pre and post Ausfleet implementation undertaken by Stonnington to determine the responsibilities that would be automated and the percentage that would be reallocated to other staff is incorrect. 6 Ms Costigan’s evidence is that Stonnington have not included all of the tasks that form part of her role and she disagrees with Stonnington’s analysis.7

[21] Some of the tasks performed by Ms Costigan have been reallocated to Mr Kirk and it is submitted that Stonnington have not acknowledged those tasks as being part of Ms Costigan’s role resulting in a false assessment of the tasks she performed. 8 Ms Costigan submits by claiming that part of her role does not belong to her, Stonnington have misrepresented the proportion of her role that is being redistributed.9

[22] Ms Costigan submits one of the tasks reallocated to Mr Kirk is the task of “liaising with the fleet staff and vehicle user regarding the scheduling” which currently takes up between 15-20% of Ms Costigan’s day. Ms Costigan had formed the view that adding such a significant load to Mr Kirk’s already full-time workload is not practicable. 10

[23] Mr Kirk does not dispute that he is performing this task although he is in disagreement with Ms Costigan’s assessment of the time required to perform the task. Mr Kirk’s evidence is that it is he who is best placed to assess whether the task is manageable within his role not Ms Costigan. 11

[24] Stonnington submit that it is not up to Ms Costigan or the ASU to determine whether Mr Kirk and the other Mechanics are capable of performing, and/or otherwise have the capacity to perform the additional tasks allocated to them. They further submit that the Commission is being asked to “stand in the Council’s shoes” contrary to the established principle enunciated in the decision of Moore J in the matter of Walton v Mermaid Drycleaners Pty Ltd. 12

[25] Ms Costigan recognises whilst the introduction of Ausfleet will result in a reduction of tasks she performs, she maintains her role still exists even if it is in a part-time capacity. Ms Costigan argues that the portion of the role that is intended to flow to Mr Kirk, in addition to the multiple tasks which form part of Ms Costigan’s role which were incorrectly attributed to Mr Kirk, still make up her role and therefore more than 30% or more of the role still remains. 13

[26] Mr Kirk’s evidence is that Ms Costigan has misrepresented some of the tasks she purports to be part of her role. Mr Kirk’s evidence is that the tasks performed by Ms Costigan post implementation of Ausfleet have been distributed amongst the Fleet Management Coordinator and the Mechanics and Ausfleet performs the rest therefore her role no longer exists. 14

[27] Ms Costigan further submits that there will be inevitable teething issues with the implementation of Ausfleet and the associated tasks could be performed by the Fleet Administration Officer. 15 Ms Costigan’s evidence is that this had been her experience in the past with implementation of other systems.16

[28] Ms Costigan gave evidence that she had visited Councils where Ausfleet had been adopted and manual work was still required to be done by a fleet administrator. Ms Costigan’s evidence was that those tasks represent a significant proportion of time each week and as the Fleet Administrator those tasks would reasonably be considered part of her role. 17

[29] Mr Kirk disputed Ms Costigan’s knowledge about the fleet management operations at the other Councils stating “the fleet sizes of other Councils have no practical significance in this matter”. 18

[30] Stonnington submit that Ms Costigan’s reliance on what happens at other Councils has not probative value. Stonnington submits that each Council has different operational requirements, fleet sizes vary and the requirements may vary depending on the Ausfleet modules they have purchased. 19

[31] Ms Costigan submits the remaining tasks that make up her role, combined with the implementation of the new Ausfleet technology and remaining tasks required going forward demonstrates that her role is not redundant. 20

[32] Stonnington submit the introduction of the new fleet management system is not a sham or contrivance aimed at removing Ms Costigan’s position. They undertook a detailed analysis of how the introduction of the system might impact on the job performed by Ms Costigan. 21

[33] Stonnington submit that during the analysis conducted they engaged in lengthy consultation with both Ms Costigan and the ASU. 22 This does not appear to be a matter in dispute.

[34] Mr Kirk’s evidence is that he undertook a thorough detailed process before deciding to purchase and implement the Ausfleet system and reached the conclusion that the Fleet Administrator role would no longer be required 23

[35] Stonnington submit that the fact that the parties do not agree on the analysis, does not mean that there has not been a change in the operational requirements of Stonnington’s Fleet Management in-order to improve efficiency resulting in the tasks being performed by Ms Costigan being distributed to other employees and her role no longer being in existence. 24

[36] Mr Kirk gave evidence that Ms Costigan’s position has not been replaced and with the implementation of the new Ausfleet system there is no requirement to replace her role.

Redeployment

[37] Ms Costigan submits should the Commission find against them on the matter of artificial restructure, she submits in the alternative Stonnington is in breach of its obligation to seek redeployment opportunities for her under the Agreement. 25

[38] Ms Costigan submits there have been no attempts by Stonnington to find her redeployment and she has not been offered any retraining opportunities as required by clause 8.1.2 of the Agreement. 26

[39] Ms Costigan outlined a number of positions that had become available at Stonnington and submits the failure of Stonnington to redeploy her into any of those positions puts them in breach of clause 8.2 of the Agreement. 27 In support of this proposition she relies on the decision of the Full Bench in Ulan Coal Mines Limited v Honeysett28 at [34] which states:

“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.”

[40] Ms Costigan submits the Agreement provisions place a more onerous obligation on Stonnington to redeploy Ms Costigan than the Act. Ms Costigan submits the Agreement requires Stonnington to seek out redeployment opportunities at the same classification level as the employee’s redundant role. Additionally, there is a positive expectation that suitable opportunities at lower levels are offered, and where opportunities at the same level requiring skills that are not currently in possession are available, training is expected to be provided. It is further submitted that the requirement is further strengthened by clause 8.1.2 of the Agreement. 29

[41] Ms Costigan’s evidence is that at no point has she been offered any redeployment opportunities. On 4 September 2020 an email was sent to all staff which advertised two temporary opportunities, Ms Costigan’s evidence is that she was not approach regarding those opportunities. 30

[42] Ms Robinson gave evidence that Stonnington had sought redeployment opportunities for Ms Costigan however at the time of the hearing no re-deployment opportunities had arisen since 25 August 2020. 31 Ms Robinson’s evidence is that during Covid-19 Stonnington stood down over 200 permanent employees from various departments. The positions advertised as part of the “Temporary Opportunities Program” are not budgeted positions and are not part of Stonnington’s ordinary structure. The positions were created as part of an initiative to identify useful work for employees in positions impacted by Covid-19 who would otherwise be stood down from work without pay. Stonnington did not consider these temporary opportunities to be suitable for redeployment.32

[43] Ms Robinson gave further evidence that Stonnington had regularly communicated with Ms Bagg regarding the number of staff stood down from duty and the appointments made as part of the Temporary Opportunities Program. Ms Robinson’s evidence is that the Temporary Opportunities Program positions have been filled and there are no current vacancies. 33

[44] Ms Robinson’s evidence was that Stonnington had not offered Ms Costigan any redeployment opportunities between May and August of 2020 because they were still engaged in a genuine consultation process regarding Ms Costigan’s position and the final decision to make her role redundant had not been reached. 34

[45] Ms Robinson also gave evidence that two positions, Revenue Officer and Team Leader Golf Course were advertised. Stonnington did not consider Ms Costigan a suitable candidate for either role based on the skill set and qualifications required. 35

[46] Ms Costigan gave further evidence that she had not been offered any career counselling or training opportunities. 36

[47] Ms Robinson’s evidence is that this had not occurred because no suitable positions for redeployment had been identified. 37 Ms Robinson’s evidence is that had a suitable redeployment opportunity become available then any relevant training would have been considered.38

[48] Ms Costigan submits she should be provided with a part-time role doing the remaining tasks rather than redistributing them to Mr Kirk. Ms Costigan submits her remaining tasks, combined with managing the implementation of the new Ausfleet technology would form at least a part-time role which she could be redeployed into at least whilst the teething issues with Ausfleet are ironed out. 39

[49] Stonnington rejects the proposition that any failure by them to comply with its redeployment obligations under clause 8.4 of the Agreement could lead to the conclusion that there has been an “artificial restructure” as contemplated by clause 8.1.3. 40

[50] Stonnington submit they are entitled to make a determination as to whether or not any vacant positions within its organisational structure would be suitable for redeployment to an affected employee. They submit Ms Costigan is asking the Commission to ‘stand in the Councils shoes” in relation to its fair and objective assessment that Ms Costigan was not suitable for redeployment. 41

[51] Stonnington further submit in determining whether redeployment was reasonable, a number of matters may be relevant, including:

•  Whether there exists a job or a position or other work to which the employee can be redeployed;

•  The nature of any available position;

•  The qualifications required to perform the job; and

•  The employee’s skills, qualifications and experience. 42

[52] Stonnington submit that there must be appropriate evidentiary basis for the Commission to make a finding that there was a job or a position or other work within Stonnington to which it would have been reasonable in all of the circumstances to redeploy Ms Costigan. 43

Jurisdiction

[53] The parties contend the Commission has jurisdiction to hear and determine the dispute. The Application relates to a dispute about a matter arising under the Agreement within the meaning of clause 5.1.1 of the Agreement.

[54] It is not in contention that the dispute resolution procedure set out in clause 5 of the Agreement has been complied with. The ASU requested the Commission determine the dispute by arbitration in accordance with clause 5.51 of the Agreement. Neither party objected to the Commission exercising conciliation or arbitration powers in relation to the Dispute.

Relevant terms of the Agreement

[55] The provisions of the Agreement relevant to the dispute are set out below:

“5. Dispute resolution procedure

5.1. Resolution of disputes and grievances

5.1.1. If a dispute or grievance about a matter arising under this Agreement or the National Employment Standards, the parties to this dispute will attempt to resolve the dispute at the workplace level in accordance with clause 5.

5.1.2. Clause 5 does not apply to any dispute on a matter or matters arising in the course of bargaining in relation to a proposed workplace agreement.

5.1.3. A party may choose to be represented at any stage by a representative, including a union representative or employer organisation.

5.2. Obligations of the Parties and Employees

5.2.1. The parties to the dispute or grievance must genuinely attempt to resolve the dispute or grievance through the processes set out in clause 5 and must cooperate to ensure that these processes are carried out expeditiously.

5.2.2. Whilst a dispute or grievance is being dealt with in accordance with clause 5, work must continue in accordance with usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to his or her health or safety, has advised Council of this concern and has not unreasonably failed to comply with a direction by Council to perform other available work that is safe and appropriate for the employee to perform.

5.2.3. No party or employee will be prejudiced as to the final settlement of the dispute or grievance by the continuance of work in accordance with clause 5.2.

5.3. Discussion of grievance or dispute

5.3.1. The dispute or grievance must first be discussed by the aggrieved employee(s) with the employee(s) immediate supervisor or People and Culture where applicable.

5.3.2. If the matter is not settled, the employee(s) can require that the matter be discussed with another representative of Council appointed for the purposes of this procedure.

5.3.3. If the matter is not settled, a party to the dispute may apply to the FWC to have the dispute or grievance dealt with.

5.4. Conciliation

5.4.1. Where a dispute or grievance is referred for conciliation, a member of the FWC shall do everything that appears to the member to be right and proper to assist the parties to agree on terms for the settlement of the dispute or grievance.

5.4.2. This may include arranging:

a) Conferences of the parties or their representatives presided over by the member; and

b) for the parties or their representatives to confer among themselves at conferences at which the member is not present.

5.4.3. Conciliation before FWC shall be regarded as completed when:

a) The parties have reached agreement on the settlement of the grievance or dispute; or

b) the member of FWC conducting the conciliation is satisfied that there is no likelihood that within a reasonable period, further conciliation will result in agreement by the parties on terms for settlement of the grievance or dispute; or

c) the parties have informed the FWC member that there is no likelihood of agreement on the settlement of the grievance or dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.

5.5. Arbitration

5.5.1. If the dispute or grievance has not been settled when conciliation has been completed, either party may request that FWC proceed to determine the dispute or grievance by arbitration.

5.5.2. Where a member of FWC has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects to the member doing so.

5.5.3. The determination of FWC is binding upon the parties and employees.

5.5.4. An appeal lies to a Full Bench of the FWC, with the leave of the Full Bench, against a determination of a single member of FWC made pursuant to clause 5.5.

…

8. Redundancy and Redeployment

8.1. Although some roles, tasks and functions of staff may change, all parties are committed to employment security.

8.1.1. Where changes are proposed that will affect the employment security of one or more employees, Council agrees to discuss and explore all options with affected staff and where requested, their nominated employee representative, prior to a decision to make any position redundant.

8.1.2. Where changes to work, service provision and programs occur, the opening up of career paths, retraining and redeployment will be the primary strategies used to ensure employment security.

8.1.3. No "artificial restructuring" will occur.

8.1.4. Council will provide access to career counselling as part of the transition process.

8.2. During the term of this agreement the Chief Executive Officer may declare the position of one or more employee's to be redundant. Council shall exhaust the Redeployment provisions before any employee is made redundant.

…

8.4. Redeployment

8.4.1. When a position is declared redundant Council will make efforts to offer redeployment opportunities to affected employees to other vacant positions.

8.4.2. Redeployment opportunities at the same classification level will be sought for affected employees provided that the employee has the skills and ability to perform the duties of the position.

8.4.3. If redeployment opportunities do not exist at the same classification level then other positions at a lower classification level may be offered to the employee/s, who may elect to accept such offer. Such offers will be made to employees that have the necessary skills to meet the requirements of the position. In this instance, the salary will be maintained at the substantive rate of pay for a period of 12 months.

8.4.4. An employee may be redeployed to a position where he/she may not possess all the necessary skills but may fulfil the requirements of the position with further training either on or off the job. Such training will be provided and all costs met by Council. Tertiary education training requirements will not be a form of training that is envisaged to be provided or such costs met by Council.

8.4.5. Where by agreement of Council an employee elects to transfer to a vacant position on a trial basis, the terms of the trial period shall be in writing and shall be for no longer than six (6) months. Within such six (6) month trial period either party may terminate the trial employment arrangements whereupon the employee shall be entitled to receive redundancy payments arising from the employee/s former redundant position.

8.4.6. An employee who has refused 2 reasonable redeployment/retraining offers will be compulsorily made redundant.”

Consideration

[56] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd 44 (Berri) affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose.45 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made and in which it operates.46 Berri further provides that the first task in construing an enterprise agreement is to determine whether the agreement has a plain meaning or is ambiguous or susceptible of more than one meaning.47

[57] The application of the principles set out in Berri were further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA. 48At paragraph [35] of that decision theFull Bench stated:

“As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the works used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve an ambiguity.” 49

[58] Stonnington submits the Commission should also have regard to the following passage in Berri:

“There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments such as enterprise agreements is to be avoided, and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’. A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement.” 50 (references omitted)

[59] The parties contend that as there is no definition of “artificial restructure” in the Agreement the principles that apply to the interpretation of an enterprise agreement outlined in the Full Bench of the Commission in Berri apply.

[60] The parties further submit that the meaning of the term “genuine redundancy” for the purposes of an unfair dismissal as set out in section 389 of the Act is instructive and relevant to this matter, as is the jurisprudence around this provision. In particular, section 389(1)(a) of the Act provides that “a person’s dismissal was a case of genuine redundancy if:

“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 employee’s enterprise;” (emphasis added)

[61] Stonnington submits that, as in the case of the meaning of a “genuine redundancy” by reference to section 389 of the FW Act, the wording of and jurisprudence around section 389(2) of the FW Act would also be useful and of relevance in this matter. For the sake of convenience, section 389(2) reads as follows:

“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.”

[62] Paragraph 1549 of the Explanatory Memorandum goes on to state as follows:

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

[63] Ms Costigan is correct in so far as for the present application to be successful, she must establish that there has been a breach of the Agreement. Ms Costigan’s contention is that Stonnington are undertaking an “artificial restructure” because the operational changes do not mean that Ms Costigan’s job no longer exists and therefore they are in breach of clause 8.1 of the Agreement.

[64] Clause 8.1.3 states that no “artificial restructuring” will occur.

[65] Firstly, I acknowledge that Ms Costigan has been a long serving and loyal employee. It is also acknowledged that the present circumstances have caused Ms Costigan considerable distress as would be the case for anyone being advised that their role is being made redundant after such a long serving career with any employer.

[66] I note it is not in dispute that Stonnington has genuinely introduced new technology for managing its fleet because the previous system “Technology One” was not appropriate for Fleet Management.

[67] Ms Costigan argues that the tasks she performed in her role still largely exist and therefore the restructure undertaken that has resulted in her role no longer existing is not a case of genuine redundancy. I disagree with Ms Costigan’s submission on this point.

[68] Stonnington have for operational reasons introduced new technology for the management of their fleet, as I have previously stated this is a fact that is not in dispute. For the purpose of identifying if Ms Costigan’s role is redundant it is critical to understand whether her ‘role’ prior to the introduction of Ausfleet has, after the introduction of Ausfleet, any tasks left to perform, not whether the tasks themselves still exist. A role involves a collection of functions, tasks and responsibilities. If Ms Costigan’s role is no longer required to be performed (as opposed to the duties of the role) due to the organisational restructure or in this case the redistribution of duties, the role itself may be redundant. 51

[69] This is reinforced by the Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) at paragraph 1548 of which includes the following examples of what would constitute “changes in the operational requirements of the employer’s enterprise”.

“•  a machine is now available to do the job performed by the employee”

•  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”

[70] Ms Costigan submits the proportion reported by Stonnington is incorrect. Regardless of whether or not a proportion of those tasks exist, the facts in this matter are that post the implementation of Ausfleet those tasks have been re-distributed to other employees who Stonnington consider have capacity within their roles to perform those tasks and those tasks are no longer required to be performed by the role Ms Costigan held.

[71] Although the parties are in dispute as to what the percentage of those tasks performed by Ms Costigan have been eliminated due to the introduction of the new technology and what percentage remained this is a mute-point. It is not the mere existence of the tasks that determine if a role is genuinely redundant, it is whether the role itself still exists in some capacity. A genuine redundancy can and will still occur where the duties associated with the previous position are redistributed to other positions.

[72] The evidence supports a finding that regardless of the purported percentages, Ms Costigan’s remaining tasks have been dispersed amongst other roles and Ms Costigan’s role no longer exists either in its previous form or in any other form. It is not a matter for the ASU, Ms Costigan or the Commission to determine whether those tasks distributed have placed an unfair burden on the employees who will perform those tasks along with their existing roles.

[73] Ms Costigan submits her role is still required based on what has occurred at other Councils with the introduction of Ausfleet. How other Councils have operated since the introduction of Ausfleet may be relevant to Stonnington in their process of determining their operational requirements however it has no bearing on the matters to be determined. It is a matter for Stonnington as to how they structure the roles in their organisation and the tasks they delegate to those roles. Regardless, there is insufficient evidence before the Commission about the organisational structure and role functions in the other Councils relied on by Ms Costigan to make any determination relevant to this matter.

[74] Ms Costigan submits that because Stonnington’s has failed to redeploy her into an appropriate position since deciding to introduce Ausfleet, Stonnington will be in breach of clauses 8.2 and 8.4 of the Agreement if it proceeded to make Ms Costigan redundant.

[75] The redeployment obligations for Stonnington are clearly set out in clauses 8.2 and 8.4 and whilst it is required to make efforts to identify redeployment opportunities for Ms Costigan this cannot be done in isolation to assessing her suitability for redeployment to other vacant positions. It is a matter for Stonnington to determine which of its employees would be suitable to redeploy into the vacant position within its organisational structure. Further the decision not to redeploy Ms Costigan into the temporary roles is an acceptable decision as those roles were either not permanent or budgeted roles and were identified for the purposes of keeping stood down employees engaged.

[76] On the issue of Stonnington not offering Ms Costigan redeployment to the Revenue Officers role or the Team Leader Golf Course position, the evidence does not satisfy me that there was any procedural or merit failure that would amount to a breach of clauses 8.2 or 8.4. It is clear on the evidence Ms Costigan was not considered to be a good candidate for either role for reasons of both relevant recent experience, qualifications and skills. As outlined in Ms Robinson’s evidence it was clear that Stonnington did not consider that Ms Costigan would be an appropriate fit for either role.

[77] Ms Costigan submits that Stonnington will be in breach of clauses 8.2 and 8.4 if it proceeds with the decision to terminate Ms Costigan’s employment by reason of redundancy. I agree with Ms Costigan’s submission that the Agreement places a positive obligation on Stonnington to exhaust the Redeployment provisions within the Agreement before making Ms Costigan redundant. Clause 8.2 requires that Stonnington exhaust all redeployment provisions before Ms Costigan’s position is made redundant and clause 8.1.2 requires that the ‘opening up of career paths, retraining and redeployment will be the primary strategies used to ensure employment security’. However, the submission made by the Ms Costigan that Stonnington will be in breach of clauses 8.2 and 8.4 if it proceeds with Ms Costigan’s dismissal is premature. Whether or not there has been compliance at the time of the dismissal can only be determined at that point of time and not in advance of the event.

[78] However, I have formed the view that at the time of the hearing, Stonnington had been complying with its obligations to source redeployment opportunities for Ms Costigan. Ms Costigan has yet to be dismissed from her employment. Should Stonnington proceed with the dismissal, then it is open to Ms Costigan to make an unfair dismissal application if she believes Stonnington have failed to meet their obligations set out in clauses 8.2 and 8.4.

[79] Whilst a failure to redeploy Ms Costigan may in certain circumstances result in her dismissal not being a case of genuine redundancy, it would not however result in a breach of clauses 8.1.1, and 8.1.4. Any failure to redeploy Ms Costigan would not alter the finding that Ms Costigan’s role no longer exists due to a genuine restructure of the business and would not result in a breach of clause 8.1.3.

Conclusion

[80] Although the outcome of the organisation restructure and level of discussion may be to Ms Costigan’s dissatisfaction, I have formed the view based on the evidence before me that Stonnington have engaged in ongoing discussions with Ms Costigan and have to the date of the hearing in this matter explored options in accordance with 8.1.1 of the Agreement.

[81] I have concluded that at the time of the hearing Stonnington had not breached clauses 8.1, 8.2 or 8.4 of the Agreement. Stonnington had not undertaken an artificial restructure by making Ms Costigan’s role redundant. Ms Costigan’s role is no longer in existence due to the introduction of Ausfleet which has resulted in the remaining tasks that were formally part of her role being dispersed amongst other employees. The dispute is therefore determined accordingly.

COMMISSIONER

Appearances:

D. Predic of Australian Municipal, Administrative, Clerical and Services Union for the Applicant
G. Katz of Meerkin & Apel Lawyers for the Respondent

Hearing details:

2020.
Melbourne (by video link via Microsoft Teams):
November 17.

Printed by authority of the Commonwealth Government Printer

<AE502023  PR727074>

 1   AE502023

 2   Exhibit A1 at [26]

 3   Exhibit R1 at [18]

 4   Ibid at [7]

 5   Exhibit A2 at [3] and [5]

 6   Exhibit A1 at [32] – [33]

 7   Exhibit A3 at [27]

 8   Exhibit A1 at [34]

 9   Ibid at [35]

 10   Ibid at [36]

 11   Exhibit R2 at [17]

 12 [1996] 142 ALR 681 at 685

 13   Exhibit A1 at [38]

 14   Exhibit R3 at [9]

 15   Exhibit A1 at [39] – [41]

 16   Exhibit A3 at [8]

 17   Ibid at [9] – [12]

 18   Exhibit R3 at [7]

 19   Exhibit R1 at [16]

 20   Exhibit A1 at [42]

 21   Exhibit R1 at [13]

 22   Ibid

 23   Exhibit R2 at [4] – [11]

 24   Exhibit R1 at [14]

 25   Exhibit A1 at [47]

 26   Ibid at [48]

 27   Ibid at [50] – [51]

 28   [2010] FWAFB 7578

 29   Exhibit A1 at [54] – [55]

 30   Exhibit A3 at [28] – [29]

 31   Exhibit R7 at [14(d)]

 32   Ibid at [14(e)]

 33   Ibid at [15]

 34   Ibid at [16]

 35   Ibid at [15]

 36   Exhibit A3 at [30]

 37   Exhibit R7 at [14(f)]

 38   Ibid at [16]

 39   Exhibit A1 at [57]

 40   Exhibit R1 at [21]

 41   Ibid at [19]

 42   Ibid at [23]

 43   Ibid at [24]

 44   [2017] FWCFB 3005

 45   Ibid at [114]

 46   Ibid

 47   Ibid

 48   [2017] FWCFB 4537

 49   Ibid at [35]

 50   [2017] FWCFB 3005 at [46]

 51 Jones v Department of Energy and Minerals (1995) 60 IR 304, 308