Mr Brendan Moss v Speno Rail Maintenance Pty Ltd

[2015] FWC 5317

[2015] FWC 5317

FAIR WORK COMMISSION

DECISION

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

Mr Brendan Moss
v
Speno Rail Maintenance Pty Ltd
(U2014/12621)

COMMISSIONER CLOGHAN PERTH, 17 AUGUST 2015

Application for relief from unfair dismissal - jurisdictional objection - redundancy.

[1] This is an application by Mr Brendan Moss (Mr Moss or Applicant) to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Speno Rail Maintenance Pty Ltd (Speno or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that the Applicant was not unfairly dismissed as his dismissal was a case of genuine redundancy.

[4] At the hearing, Mr Moss was represented by Ms Marilyn West. The Applicant gave evidence on his own behalf.

[5] The Employer was represented by Mr M Vallence, Industrial Agent. Evidence was given on behalf of the Employer by:

• Mr N Nolan, Contracts Manager;



• Mr G Carty, Maintenance Manager; and



• Ms C Runesson, Human Resources Manager.

[6] This is my decision and reasons for decision on Mr Moss’ application.

RELEVANT BACKGROUND

[7] The Applicant commenced employment on 15 October 2013.

[8] The Applicant’s terms and conditions of employment were prescribed in a common law contract of employment and a “Conditions of Employment” document.

[9] The Conditions of Employment document states that the Applicant was employed as an Electrician.

[10] The common law contract of employment states that the conditions of employment documents should be read in conjunction with the Speno Rail Maintenance Employee Collective Agreement 2009 (Speno Agreement). Where there was an inconsistency between the contract of employment and the Speno Agreement, the contract of employment prevails.

[11] On commencement of employment, the Applicant worked at the Employer’s Bentley workshop.

[12] In May 2014, the Applicant was deployed to the Employer’s Belmont workshop.

[13] On 4 September 2014, the Applicant met with Mr Carty. At the meeting, Mr Moss was informed that his position has been made redundant. Mr Moss was provided with correspondence at the meeting to the effect he had been made redundant with effect from the same day – 4 September 2014. The correspondence referred to his role of Operator Maintainer – a matter which will be discussed later in this Decision.

RELEVANT LEGISLATIVE FRAMEWORK

[14] For a person to be protected from unfair dismissal, it is necessary that he or she be dismissed from their employment.

[15] Section 385 of the FW Act relevantly provides that a person has been unfairly dismissed, if the person has been dismissed, and that dismissal was not a case of genuine redundancy.

[16] The meaning of genuine redundancy can be found at s.389 of the FW Act, as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[17] Shortly put, where the Commission is satisfied that a dismissal is a genuine redundancy, the dismissal cannot be an unfair dismissal.

CONSIDERATION

s.389(1)(a) - the employer no longer requires the person’s job to be performed by anyone because of changes in operational requirements

[18] The meaning of genuine redundancy in the FW Act has three (3) statutory “tests”. The first test is whether the employer no longer required the person’s job to be performed by anyone because of the requirements of the business.

[19] Put shortly and simply, was the cessation of the redundant position attributable to a change in the employer’s business requirements?

[20] What evidence was provided to the Commission for it to be satisfied, or not satisfied, that work performed by Mr Moss was no longer required to be performed by anyone due to business requirements?

[21] Speno provides specialised services to rail network operators. Rail network operators consist of private rail network operators including those operated by mining companies and rail networks as operated by public transit authorities.

[22] Speno’s services involve the manufacturing, upgrading and maintenance of equipment used by its clients. The equipment includes specialised locomotives, railway wagons and rail testing/inspection equipment.

[23] Initially, Mr Moss was involved in the manufacturing of specialised maintenance equipment at the Bentley workshop. In May 2014, Mr Moss was transferred to the Belmont workshop because the workload at Bentley had reduced with the consequential reduction in the need for Electricians 1.

[24] Mr Nolan’s evidence is that Mr Moss was transferred to the Belmont workshop to work on what was described as the “upgrade project for the RR16M8 Rail Grinder” required in the provision of services to the Perth Transit Authority. Sometime afterwards, Mr Carty was advised that the upgrade project had been completed. The locomotive was relocated to site to go through a commissioning and monitoring process. 2

[25] Mr Carty informed Mr Nolan at the time that Mr Moss would provide electrical support to two Operators/Maintainers, who would be allocated to Perth Transit Authority (PTA) on an on-going basis 3.

[26] After approximately three (3) months of on-site support for the commissioning and monitoring of the RR16M8 Rail Grinder, Mr Nolan came to the view that on-going electrical support at the PTA had significantly diminished. Accordingly, the three (3) person team was reduced to two (2) Operator/Maintainers, with electrical support being provided by an electrician based at the Belmont workshop. In Mr Nolan’s words, the proposed arrangement would be “more cost effective and beneficial for the business” 4.

[27] Having made the decision to excise the electrician’s position from the three (3) person PTA team, Mr Nolan determined that there was insufficient work available at Belmont or Bentley workshops to deploy the Applicant into another role 5. Consequently, Mr Moss’s employment ceased by reason of redundancy.

[28] I note that, at the time of making his decisions above, Mr Nolan was the Employer’s Contracts Manager. Prior to his appointment as Contracts Manager, Mr Nolan had been employed as the Employer’s Operations Manager for approximately 12 years. For this reason, I am satisfied that he has a “broad” appreciation of the Employer’s business requirements.

[29] Mr Carty’s uncontested evidence is that the Employer has not hired any new electricians since making Mr Moss redundant 6. Further, Ms Runesson’s evidence is that the Employer has dismissed three (3) employees for reasons of redundancy since 1 January 20147. At the hearing, Ms Runesson’s evidence was that this number had increased to six (6) or seven (7)8.

[30] It is for these reasons, the Employer states that the Commission can be satisfied that an electrician’s position on the PTA contract was no longer required to be performed by anyone for business reasons, and Mr Moss was dismissed because of changes in the operational requirements of the business.

[31] Mr Nolan’s evidence regarding the operational changes was not disturbed in cross examination. Mr Nolan, in addition, expanded on his accountabilities and responsibilities as Contracts Manager. Mr Nolan explained how he examines the “health” of contracts with particular focus on compliance and commercial perspectives. Mr Nolan’s evidence, reduced to its essential, is that the Employer was “over manned” on the PTA contract. Further, that there were no other positions available for Mr Moss to be redeployed into 9.

[32] It is true that Mr Moss’ letter of dismissal refers to the role of an Operator/Maintainer being made redundant 10. Both Mr Nolan and Mr Carty’s evidence was that this was an error in the preparation of the correspondence; I have no reason to disbelieve them.

[33] The Applicant submits that even if the correspondence of 4 September 2014 to him was in error, “he was made redundant from a position that he was seconded to on a temporary basis” 11.

[34] Mr Moss was employed in the “job classification” of electrician. The “job” he performed was that of an electrician. It is the “job” of an electrician that the Employer, for business reasons, no longer wanted to be performed by any other employee.

[35] Mr Moss was not “seconded” to a “temporary position”. Mr Moss was required to work at any location as required by the Employer - whether that be in a workshop, on-site or, as he was required to do, in Karratha. The Employer’s request for Mr Moss to work on-site, with respect to the PTA contract was a reasonable and lawful direction. The Employer’s direction for Mr Moss to work on-site, pursuant to the PTA contract, was for as short or as long as the Employer required, consistent with its commercial obligations.

[36] In his Statement of Facts, the Applicant states that he met the General Manager of the Employer in August 2013 at a social event and was advised that work was available and expected to continue. Mr Moss applied for a position and was successful 12.

[37] After he commenced employment, the number of electricians increased in the workshop from two (2) to three (3) 13.

[38] In April 2014, Mr Moss worked overtime at the end of each day and on Saturdays, to ensure the delivery of a train due in May 2014 14.

[39] In May 2014, Mr Moss was advised that he had to relocate to the Bentley workshop. Mr Moss was disappointed “as the end of the project was imminent” and he was keen to see the project to completion 15.

[40] All these facts demonstrate the nature of the Employer’s business. Mr Moss’ on-going employment was always subject to the Employer being successful in winning contracts, or projects, as they were described in the hearing. As described by Mr Carty in cross examination, employment is “always dependent on what projects come in…” 16

[41] Mr Moss was employed because, at the time, there was work available for electricians. Having commenced employment, the commercial reality is that there was, and is, no “safety net” of continued employment. Mr Moss’ continuing employment was dependent upon the Employer’s success at winning further contracts. Nearly 12 months later, as many Western Australians know, economic and market circumstances had changed considerably.

[42] Mr Moss states that he is aware that, “the employer can select which employees they wish to transfer” 17. The Applicant makes this statement in relation to his transfer from Bentley to the Belmont workshop.

[43] The Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) provides examples of changes to the operational requirements of an enterprise which will lead to a genuine redundancy in paragraph 1548. They are relevantly as follows:

“ the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.”

[44] Having considered the guidance provided by the Explanatory Memorandum, I find, on the undisputed evidence, that the condition required in s.389(1)(a) of the FW Act is met. The Employer no longer required the position of an electrician to be performed by a discrete person because of changes in the operational requirements of the business. As a consequence, Mr Moss was selected to have his employment terminated.

[45] Further, at paragraph 1553 of the Explanatory Memorandum, it states:

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

[46] I shall turn to the selection process later in this Decision.

s.389(1)(b) - has the employer complied with any obligation in a modern award or enterprise agreement to consult about the redundancy

[47] The principal objective of the unfair dismissal provisions of the FW Act is to balance the needs of employees and employers with particular accommodation to the small business sector 18. The unfair dismissal provisions enable certain employees to seek relief on the grounds that their dismissal was “harsh, unjust or unreasonable”.

[48] One class of employees whose dismissal is not considered, at law, unfair are those employees who have been dismissed for genuine redundancy reasons The meaning of genuine redundancy is set out at s.389 of the FW Act.

[49] Paragraph 389(1)(b) of the FW Act, framed in the “positive”, is that if a modern award or enterprise agreement applied to the employee and those industrial instruments require the employer to consult with the employee about the redundancy, it must do so.

[50] Paragraph 389(1)(b) of the FW Act does not require employers to consult with employees, per se, about redundancy. The provision requires employers to consult with employees about redundancy only if there is an obligation, pursuant to an applicable modern award or enterprise agreement.

[51] Current provisions regarding consultation can be traced back to the Termination, Change and Redundancy (TCR) Cases in 1984 19.

[52] The TCR Cases occurred at a time of a large number of redundancies due to economic circumstances, the introduction of new technologies, rationalisation of enterprises, mergers and takeovers. At a time of high unemployment, there were a significant number of disputes relating to termination of employment by way of redundancies.

[53] The Full Bench in December 1984 20, when considering the form of the award to be made stated, under the heading “Consultation and provision of information”, the following:

“The employers submitted that the redundancy provisions should not apply to termination of employment “associated with the general turnover of labour or a seasonal downturn within the industry or reclassification or alteration of working conditions.”

All these expressions were opposed by the ACTU because they would cut down unreasonably the redundancy provisions, they were uncertain as to meaning and they were not justified by the argument.

In our decision we made reference to a number of definitions of redundancy and our draft order was based on the definition of the Chief Justice, Mr Justice Bray, in the South Australian Supreme Court. Further, at page 33 of the decision we decided that there should not be any fundamental distinction, in principle, based on the causes of redundancy.

Nevertheless, it was not our intention that the redundancy provisions should apply to the “ordinary and customary turnover of labour”; an expression used by Mr Justice Fisher in his decision related to the Employment Protection Act in New South Wales.

However, notwithstanding the helpful submissions of the parties in these proceedings, we have some difficulty in finding a suitable expression to make our intention clear. There is no doubt that we did not intend the redundancy provisions to apply where an employee is dismissed for reasons relating to his/her performance, or where termination is due to a normal feature of a business.”

[54] If a single redundancy, as in Mr Moss’ case, is not to be considered a “normal feature of business”, the consultation provisions apply. However, the consultation provisions apply generally in context of major workplace change. It seems that isolated instances of single redundancies are inimical to the context of “major workplace change”.

[55] The conceptual differences between single cases of redundancies in the ordinary course of business and collective redundancies due to major workplace change are reflected, in some respects, in s.530 of the FW Act. Section 530 requires an employer who decides to dismiss 15 or more employees for reasons of economic, technological, structural or similar nature, to give notice to Centrelink of the number, reasons and when the termination of employment will occur.

[56] Recently, the Full Bench stated:

“The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee. Indeed the presence of the express exclusion in s.119 (and in the predecessor TCR case) demonstrates that the abolition of a position as a result of ordinary and customary turnover is a redundancy; albeit one that does not give rise to an entitlement to redundancy pay. The exclusion would otherwise be entirely otiose. As we have earlier indicated, s.119 does not define ‘redundancy’. It merely sets out the circumstances in which an employee will or will not have an entitlement to redundancy pay under the NES. Doubtless employees who fall within the class have been dismissed by reason of redundancy, but ‘redundancy’ is not thereby so narrowly confined…” 21

[57] Accordingly, following the Full Bench Decision, if a single position has been abolished, the employee may not be entitled to redundancy pay, but may be entitled to the consultation provision in an enterprise agreement or modern award.

[58] The meaning of a modern award or enterprise agreement is contained in s.12 of the FW Act. A single enterprise agreement is an enterprise agreement made pursuant to subsection 172(2) of the FW Act. The Applicant has not asserted that he was employed pursuant to an enterprise agreement made pursuant to subsection 172(2) of the FW Act.

[59] Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act) refers to the continued existence of industrial instruments made pursuant to the Workplace Relations Act 1996 (WR Act). Pursuant to Schedule 3, Part 2, item 2, industrial instruments made pursuant to the WR Act, continue as a transitional instrument. The Speno Agreement is a WR Act instrument, and consequently, became a transitional instrument on repeal of the WR Act.

[60] Pursuant to sub-item 4(1) of Schedule 3, Part 2 of the FW (TPCA) Act, the content of the Speno Agreement, before the repeal of the WR Act, continues to apply when it became a transitional instrument. Put shortly, the existing content and content rules of the Speno Agreement continued to apply following the repeal of the WR Act.

[61] The Speno Agreement does not refer to any consultation provision relating to redundancy. However, the Speno Agreement provides, at subclause 8.5, that employees can access entitlements prescribed in the National Employment Standards (NES) contained in the FW Act.

[62] Division 11 of the NES deals with notice of termination of employment by way of redundancy, and redundancy payments, but does not oblige an employer to consult with employees concerning redundancies.

[63] The Applicant asserts that, pursuant to s.205 of the FW Act, the model consultation term in Schedule 2.3 of the Fair Work Regulations 2009 (FW Regulations), is incorporated as a term of the Speno Agreement. In the absence of a specific statutory provision, I am unable to agree. With few exceptions, the objective of the FW (TPCA) Act is that what was binding on employers and employees in transitional instruments, prior to the repeal of the WR Act, remains binding. The introduction of the FW Act was not intended to add or displace the existing content of transitional instruments, save few exceptions, which are not relevant to this application.

[64] Further, in any event, the model consultation term deals with the introduction of major change to “production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees”. The model term is concerned with the introduction of “major change” that will have a “significant effect on the employees”. The Employer has not introduced “major change”. The Employer is responding to a reduced demand for its services. Finally, an indication of the force of the concept of “major change”, is that it will have an impact on “employees” in the plural. I am satisfied that the model consultation term was not incorporated into the Speno Agreement by the introduction of the FW Act and, in any event, is not relevant. The Employer was faced with what is usually described as the, “ordinary and customary turnover of labour”, in a weakening environment for its services.

[65] In summary, I find that the Employer has no obligation to consult with Mr Moss pursuant to an enterprise agreement about his impending redundancy.

[66] I now turn to whether the Employer had an obligation to consult with Mr Moss pursuant to a modern award.

[67] Mr Moss’ common law contract of employment does not refer to any obligation by the Employer to consult with him concerning his termination of employment by way of a job no longer being required. The common law contract of employment also provides that, where there is an inconsistency between the common law contract of employment and the Speno Agreement, the common law contract of employment prevails.

[68] The Employer asserts that in the absence of any reference to consult about a redundant position in the common law contract of employment, the contract should prevail over any reference in the Speno Agreement. I disagree. Absence signifies absence. Inconsistency requires a lack of compatibility between two terms dealing with the same matter. The common law contract of employment and Speno Agreement are dissimilar - one does not deal with consultation arising from a redundant position, whereas the other may; they are dissimilar not inconsistent.

[69] The Speno Agreement at Clause 2 states that, “but for the operation of this Agreement [the Applicant would be] covered by the following Awards and NAPSA’s (sic) as they stood on the day of this agreement is lodged”.

“(b) the NAPSA derived from the Metal Trades (General) Award of the WAIRC (Metal Trades NAPSA); and

(c) The NAPSA derived from the redundancy General order of the WAIRC (Redundancy NAPSA)”.

[70] The incorporation of the NAPSAs is pursuant to subclause 8.1 of the Speno Agreement.

[71] The reference to “Redundancy NAPSA” is a reference to a General Order made pursuant to subsection 50(2) of the Industrial Relations Act 1979 (WA).

[72] Item 2 of Part 2 of Schedule 3 of the FW (TPCA) Act, defines transitional instruments that continue in existence after the repeal of the WR Act. Sub-item (2)(aa) relevantly defines the following instruments as a transitional instrument.

“2(aa) a State reference transitional award or common rule.”

[73] The Employer concedes that the General Order and the Metal Trades NAPSAs applied to Mr Moss 22.

[74] The Applicant asserts that the Employer was required to provide information in writing to the Applicant pursuant to (b) and (c) above in paragraph [69] when he transferred from Bentley to Belmont in May and when transferred to night shift on site in June 2014. Such a submission is irrelevant for my purposes, as I am determining whether the Employer has an obligation to consult about a redundancy and not a previous transfer in Mr Moss’ employment.

[75] The Employer asserts that NAPSAs are not incorporated into the Speno Agreement because the common law contract of employment displaced the Speno Agreement pursuant to subclause 8.4 of the Speno Agreement. Subclause 8.4 of the Speno Agreement enables the parties to enter into an arrangement where the “total package of entitlements provided to the employees is greater than would otherwise be applicable pursuant to the relevant incorporated Award/NAPSA and is consistent with the requirements of the WR Act”.

[76] The Employer submits that, pursuant to subclause 3 of the common law contract of employment, the clear intention of the parties was that, “so long as the package of entitlements set out in this letter are of greater value overall than would otherwise be applicable under the Collective Agreement [Speno Agreement], the entitlements are to be set off against all such entitlements” 23.

[77] Accordingly, the Employer submits that the Metal Trades and Redundancy NAPSAs, to the extent they are relevant, are set off against the entitlements in the common law contract of employment.

[78] The Employer submitted and gave evidence of the comparison between what Mr Moss received in monetary terms pursuant to his contract of employment vis-à-vis the Metal Trades NAPSA. As a consequence, the Employer submits that the NAPSAs were displaced by the provisions in the common law contract of employment, which does not contain any obligation to consult regarding a dismissal by way of redundancy.

[79] The Employer submitted that the Applicant’s annual salary at the time of his dismissal was $77 249. Further, in the period between 15 October 2013 and 4 September 2014, he was actually paid $66 171. Whereas, if the Applicant had been paid pursuant to Metal Trades NAPSA, he would have been entitled to $53 100 24. This evidence was not challenged as to its accuracy in cross examination25.

[80] The Employer’s monetary comparison evidence was not challenged in cross examination despite the Applicant asserting that the Employer had provided no basis for its calculation. It is notable that the Applicant asserts that he has made a similar calculation for his period of employment and contends that he would have been entitled to approximately $71 548. No calculation on how this total was arrived at, was provided in proceedings.

[81] Putting aside the unresolved submissions that Mr Moss’ common law contract of employment provided a “total package” greater than the NAPSAs and therefore displaced them, it is necessary to consider Speno’s obligation to consult, pursuant to the NAPSAs, in cases of redundancies.

[82] The Metal Trades NAPSA sets out two distinctly different provisions relating to termination of employment. Clause 6, Contract of Service sets out the provisions applicable to both parties who wish to give notice to terminate the contract of employment. Circumstances which are generally described as relating to the “customary and ordinary turnover of labour”. Clauses 32 and 32A deal with the introduction of major change, and the consequences and obligations, of the employer introducing such major change.

[83] The relevant provisions regarding redundancies are contained in Clause 32A of the Metal Trades NAPSA. Clause 32 is entitled, “Introduction of Change”. When considering the order and arrangement of Clauses 32 and 32A, I am satisfied that there is a connectedness between the two terms.

[84] The Metal Trades NAPSA evinces the intention of the parties that not every termination of employment – even employees made redundant – requires the employer to consult or discuss with employees their impending termination of employment. In the case of major change, there is an obligation to consult/discuss but not in my view, “one off” retrenchments due to a declining demand for the employer’s services.

[85] Put simply, there is a relationship in Clause 32 of the Metal Trades NAPSA between where an employer has made a definite decision to introduce “major changes in production, programme, organisation, structure or technologies”, that are likely to have “significant effects” on “employees”, and Clause 32A which deals with consequential redundancies from such a major change.

[86] It is notable that in paragraph 32A(1)(a) of the Metal Trades NPASA that discussions are to take place “where an employer has made a definite decision that the employer 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…” It is notable that Clauses 32 and 32A contain a number of references to “employees” and “terminations”. For this reason, I am satisfied that there was no obligation pursuant to the Metal Trades NAPSA, to consult or discuss with Mr Moss his impending redundancy. Mr Moss’ redundancy fell within the simple and general meaning of the “ordinary and customary turnover of labour”.

[87] I now turn to the Redundancy NAPSA.

[88] The Redundancy NAPSA similarly deals with termination of employment following the introduction “of changes in production, program, organisation, structure or technology that are likely to have significant effects on employees…” 26 Clause 3 of the Redundancy NAPSA concerns the introduction of change. Subclause 3.2 deals with the Employer’s requirement to “consult with employees affected” or their nominated unions.

[89] The Redundancy NAPSA is dealing with the introduction of major change and not the ordinary turnover of labour. The Redundancy NAPSA is dealing with termination of employment due to the introduction of major change into the employer’s business operations – not situations of redundancies due to reduced demand for its services.

[90] This conceptual distinction is recognised in the FW Act. At paragraph 119(1)(a) of the FW Act, an employee is entitled to be paid redundancy pay “except where this [the redundancy] is due to the ordinary and customary turnover of labour”.

[91] In conclusion, I am satisfied that the Employer did not have an obligation to consult with Mr Moss pursuant to an obligation in an enterprise agreement or the transitional NAPSAs.

[92] The Applicant cites two decisions in relation to consultation. Firstly, the Australian Licenced Aircraft Engineers Association v Qantas Airways Limited (No 2) [2013]FCCA 1696 (Qantas) and CPSU v Vodafone Network Pty Ltd PR11257 (Vodafone).

[93] It is noted that the reference to consultation in the Qantas case is a reference to a submission by the ALAEA citing the Privy Council in Port Louis Corporation v Attorney General of Maritius [1965] AC 1111 (Port Louis Corporation).

[94] In Port Louis Corporation, the Privy Council did indeed make the statement that “the requirement of consultation is never to be treated perfunctorily or as mere formality”. Port Louis Corporation was dealing with the extension of boundaries to the township of Port Louis. The Governor in Council was seeking the views of the Port Louis Council on the extension of the boundaries. The Privy Council stated that the Port Louis Council must be given a reasonable opportunity to state its views on the extension of the boundary. Further, that “the local authority cannot be forced or compelled to advance any views but it would be unreasonable if the Governor in Council could be prevented from making a decision because a local authority had no views or did not wish to express or declined to express any views”.

[95] The Privy Council specifically referred to the need, in its Judgement, to set out the facts of the case. The facts demonstrated that, “there is no reason to conclude that the views of the Council were not genuinely sought nor that if proffered such views would not have been reasonably and fairly considered”.

[96] It is not necessary to recite all the facts which were adopted by the Port Louis Council which appeared to delay the consultation process. In conclusion, the Privy Council state, “it would not be reasonable to allow a situation to develop which all initiative and all control of timing would pass from Government. Nor would it be reasonable if their desire to reach the moment for decision could be frustrated”. The Privy Council dismissed the Port Louis claim that there had been no consultation pursuant to the Local Government Ordinance.

[97] Importantly, the Privy Council came to the judgement in Port Louis Corporation that the duty to consult varies from context to context and “the nature and the object of consultation must be related to the circumstances which call for it”.

[98] The Applicant also referred to the “perfunctory” comment by Commissioner Smith, as he then was, in the Qantas case. In Qantas, the Commission was dealing with an unspecified number of redundancies (but more than 15) resulting from significant changes in the telecommunications sector. Secondly, the consultation referred to consultation with the relevant unions and not employees. Thirdly, and the Commissioner emphasised the point that each case turns on its own facts. 27 The facts in Qantas can be distinguished from this application.

[99] Mr Moss’ written evidence regarding the meeting on 4 September 2014 can be relevantly distilled to:

“Mr Carty said “I have bad news”. He handed me an envelope and said “You’ve been made redundant”. 28

[100] In his supplementary written evidence, Mr Moss states:

“The difference in recollection of the “discussion” cannot be verified because there was no-one else present. The Commissioner must decide on who is telling the truth” 29.

[101] In cross examination, Mr Moss states he spent five (5) minutes with Mr Carty in his office 30. Mr Moss did say “I have bad news. You’ve been made redundant”31. Mr Moss agreed that there was further discussion32 but cannot remember what was said33.

[102] Mr Moss agrees that it was “possible” that he was informed that a decision had been made to reduce the number on the RR16M8 Rail Grinder. It was also explained to him that he had been selected for redundancy 34. Mr Carty also explained to him that there was no alternative work available35.

[103] In the course of the discussion, mention was made about a disassembled motor 36.

[104] Mr Moss agreed that he had the opportunity to speak during the meeting with Mr Carty 37. However, Mr Moss took the view that he “wasn’t aware that I could talk myself back into my job”38.

[105] Mr Moss does not disagree that he was given the opportunity to contribute to the meeting by Mr Carty 39.

[106] I am satisfied that the meeting between Mr Moss and Mr Carty was not as perfunctory as described by Mr Moss in his witness statement. It would have been surprising if Mr Moss had not been disappointed and upset at the unexpected decision. It is never a pleasant experience for the messenger with such news either. For this reason, such discussions tend to be brief and may give the appearance of being incomplete or insufficient. However, I cannot discern anything from either Mr Moss’ or Mr Carty’s evidence to discredit the essential elements that, for business reasons, an electrician’s job had cease, Mr Moss had been selected to be retrenched, and that there was no alternative position available.

[107] Mr Carty’s evidence of the meeting on 4 September 2014 was not disturbed. While the process may not have been perfect, I am satisfied that:

• Mr Moss became aware that the Employer had made a decision to reduce its workforce by one electrician for economic reasons;



• the Employer had decided that Mr Moss was the electrician to lose his employment;



• subject to any response from Mr Moss, the Employer intended to terminate his employment with immediate effect on 4 September 2014;



• Mr Moss was given the opportunity to respond to Mr Carty but either did not respond, or did not respond adequately, to the circumstances put to him by Mr Carty; and



• in view of the response or lack of response, the Employer acted on its selection that Mr Moss would be the retrenched electrician and provided him with correspondence to that effect (save the wrongly named position).

[108] It is not uncommon for employees who have been retrenched from their employment to claim that consultation was insufficient or inadequate. Similar to other applicants in like situations, Mr Moss does not argue that there was not an economic reason for the position to cease, rather that he would have preferred another the person was chosen to be made redundant. The circumstances of selection are prohibited from being taken into account by the Commission, in determining whether the redundancy was genuine.

[109] In conclusion, should I be wrong in finding there was no obligation pursuant to an enterprise agreement or award to consult with Mr Moss, I am satisfied, on the facts, that consultation occurred during the meeting between Mr Moss and Mr Carty on 4 September 2014.

s.389(2) - was it reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or associated entities (if any)

[110] The ability to redeploy a person within the enterprise or entities (if any) is generally a matter within the knowledge of the employer. While it is understandable and common for employees to assert that they can be redeployed into another position, in the circumstances of this redundancy, the Employer was experiencing an operational decline for its services.

[111] The Applicant submits that, “it seems [he] was displaced to make way for the adult apprentice” 40. Further, if redeployment had been explored, “he would have suggested his move back to the Workshop in his role of Electrician”41.

[112] Ms Runesson was questioned by Ms West on whether the Employer only considered vacancies to redeploy Mr Moss into on 4 September 2014. Ms Runesson rejected the assertion and gave evidence that she considered the situation in the context that “there were redundancies all throughout the year” and “we were not employing”. Furthermore, that although the Speno Rail Maintenance Australia Pty Ltd Roy Hill AWU Greenfields Agreement 2014 had been approved by the Commission in December 2014, the Employer had not employed any new employees for that contract 42. It is notable that such an event occurred three (3) months after Mr Moss’ dismissal by way of redundancy.

[113] While Mr Moss states that it would have been reasonable to be redeployed with the Employer’s enterprise, I consider his evidence, as follows, as reflective of his true position:

“Tell me do you know what work there was to return to once you finished on the Perth Transit Authority project?---I don’t really know what’s going on in the workshop.

Do you know if there was any new projects under way at the Belmont workshop or the Bentley workshop?---No, I can’t say I know.

So your contention that you should have been redeployed back to – or moved back to that role and undertaken the electrician’s job that you're employed to perform, you don't know whether there was any work for that job or not?---No.

I'm assuming if you don't know what was happening at Bentley or Belmont, you didn't know whether there was anything in the north-west either?---No.

Do you accept that if there wasn't any work, additional work, for an electrician at the time that your position would have been supernumerary to the requirements of the business?---No, in the respect that if I wasn't required as an electrician, the amount of electricians in the company, they could have asked for volunteer redundancies.

So that goes to an issue of selection.  That goes to a concern that you had regarding selection.  The question I'm asking you is do you accept that when you returned back to the Belmont or Bentley workshop, if there was no work, additional work, for you to undertake, there was too many electricians in the business?---I accept that.

But you - - -?---Yes.  That's not my decision.

But your position is that you shouldn't have been the one was selected?---Exactly, yes.

It’s management’s - I think you just indicated, it’s management’s job to decide how much labour they need, isn't it?---Yes.” 43

[114] Mr Nolan and Mr Carty both gave evidence that there was no available work for Mr Moss. In the evidence of Mr Nolan, “sweeping the floor is not realistically respectful of the man…It would have been fill-in work.  There was no position as such.  We would be making a position.” 44

[115] Having considered the evidence of the circumstances which the Employer faced operationally, I find that Mr Moss could not have been redeployed within the enterprise or its entities (if any).

CONCLUSION

[116] For the above reasons, the Commission has no jurisdiction to deal with Mr Moss’ application for alleged unfair dismissal as his dismissal was a case of genuine redundancy pursuant to s.389 of the FW Act. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

M West for the Applicant.

M Vallence, industrial agent, for the Employer.

Hearing details:

2015:

Perth;

5 March.

 1   Exhibit R8 (11)

 2   Exhibit R8 (10)

 3   Exhibit R8 (13-15)

 4   Exhibit R8 (17)

 5   Exhibit R8 (17)

 6   Exhibit R7 (38)

 7   Exhibit R6 (13)

 8   Transcript PN373

 9   Transcript PN593 to PN604

 10   Exhibit A1 (2)

 11   Exhibit A4 (18)

 12   Exhibit A1 (3)

 13   Exhibit A1 (10)

 14   Exhibit A1 (12)

 15   Exhibit A1 (17)

 16   Transcript PN532

 17   Exhibit A1 (24)

 18   Explanatory Memorandum para 1507

 19   F6230

 20   F7262

 21   [2015] FWCFB 1162

 22   Exhibit R1 (12)(f)(i) and (ii)

 23   Exhibit A1 (3)

 24   Exhibit R6 (11)

 25   Transcript PN281 to PN286

 26   Clause 1 “Application”

 27   [2013]FCCA 1696 paragraph 28

 28   Exhibit A8 (26)

 29   Exhibit A9 (29)

 30   Transcript PN776

 31   Transcript PN777

 32   Transcript PN781

 33   Transcript PN787

 34   Transcript PN789

 35   Transcript PN790

 36   Transcript PN791

 37   Transcript PN801

 38   Transcript PN793

 39   Transcript PN798

 40   Transcript PN913

 41   Exhibit A4 (29)

 42   Transcript PN306

 43   Transcript PN741 to PN749

 44   Transcript PN603 and PN604

Printed by authority of the Commonwealth Government Printer

<Price code C, PR570141>