Mr Leslie Cochrane v Kestrel Coal Pty Ltd

[2015] FWC 2885

[2015] FWC 2885[Note: Appeals pursuant to s.604 (C2015/4001, C2015/4002, C2015/4003 and C2015/4004) were lodged against this decision - refer to Full Bench decision dated 22 July 2015 [[2015] FWCFB 4760] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Leslie Cochrane
v
Kestrel Coal Pty Ltd
(U2014/13402)

COMMISSIONER SPENCER BRISBANE, 28 APRIL 2015

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy - whether Respondent had an obligation to exhaust redeployment opportunities in associated entities, Rio Tinto Ltd and if so was this done.

Introduction

[1] This decision relates to an application made by Mr Leslie Cochrane (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Kestrel Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as an operator/maintainer at the Kestrel Underground Coal Mine under the Kestrel Coal Workplace Agreement 2009 (the Agreement).

[2] There are three other related applications which were heard jointly by consent with this application (U2014/13399 - Mr Tony McDonell, U2014/13400 - Mr Bevan Logovik, and U2014/13401 - Mr Daniel Stickley). Separate decisions in each matter have been issued, however, given the applications address similar issues there is some overlap of the evidence and commonality in the reasons.

[3] The Respondent raised a jurisdictional objection pursuant to s.385(d) in relation to the applications that the terminations of the Applicants’ employment were each due to genuine redundancy, and therefore they have not been unfairly dismissed. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 1

[4] Directions were issued for the filing of submissions in relation to the jurisdictional objection and the substantive unfair dismissal applications. The Applicants’ primary argument, that the dismissals were not cases of genuine redundancy, was on the basis that the jobs were still required to be performed (s.389(1)(a)), and it would have been reasonable to redeploy the Applicants, within an associated entity of the Respondent: the Rio Tinto Coal Australia (RTCA) Group, of which the Respondent is a subsidiary company, or within the Rio Tinto Ltd Group (s.389(2)). The Applicants did not pursue the argument that requirement of consultation, as per s.389(1)(b), had not been met, however, they did not concede that it had been met by the Respondent.

Orders requiring the production of documents

[5] The Applicant had earlier made an application, for Orders requiring the production of documents, prior to the matters being allocated to the Commission, as currently constituted. On allocation for arbitration to the Commission as currently constituted, these matters had not yet been dealt with.

[6] In summary terms, the Applicants sought three Orders, directed to Kestrel Coal Pty Ltd (the Respondent), Rio Tinto Coal Australia Pty Ltd and to Rio Tinto Ltd.

[7] The first two of the Orders sought were in similar terms. These applications for Orders sought the production of documents related to redeployment opportunities, that existed within the operations of the Respondent or that of an associated entity engaged in the Australian mining operations of Rio Tinto Ltd. The applications also sought documents referring to the transfer of employees or redeployment between associated entities of the Respondent and the Kestrel, Hail Creek, and Clermont coal mines. The Orders also sought: the personnel files of each of the Applicants; the total hours worked by contractors at the Kestrel Mine for September and November 2014, evidence of any vacant positions at a list of Rio Tinto Coal Australia mines and specific workplace relations policies that would have applied to the Applicants in September and November 2014, and also policies produced by Rio Tinto Ltd which related generally to workplace relations, industrial relations or human rights that bound the Respondent and employees in September and November 2014.

[8] The application for an Order directed to Rio Tinto Ltd sought the production of documents relating to: vacant positions within Rio Tinto Ltd or associated entities at certain levels and classifications, evidence of any transfer or redeployment of employees from Rio Tinto Ltd or associated entities to the Kestrel coal mine, Hail Creek coal mine or Clermont coal mine; specific workplace relations policies that would have applied to the Applicants in September and November 2014; and policies produced by Rio Tinto Ltd which related generally to workplace relations, industrial relations or human rights that bound the Respondent and employees in September and November 2014.

[9] Directions were set for a response by the Respondent. The Respondent agreed to provide some of the documents sought in relation to the Kestrel and the RTCA Orders, but objected to the items relating to the total hours worked by contractors, on the basis that it would be oppressive for the Respondent and because the records would not be directly relevant to any matter in issue. The Respondent also objected to the production of all policies relating to workplace relations, industrial relations or human rights on the basis that any relevant documents in those categories will be produced pursuant to the previous item, relating to specific policies. The Respondent indicated that they had not had time to take instructions from Rio Tinto Ltd and therefore did not agree to provide any documents in relation to the Rio Tinto Ltd Order as sought by the Applicant. The Kestrel and RTCA Orders were granted in part, except for the contractors’ hours item and the broad range of policies item. The Applicants pressed the items not granted, and the Rio Tinto Ltd Order.

[10] A hearing was held on 30 January 2015. The Applicants were represented by Mr Adam Walkaden, National Legal Officer of the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (CFMEU). The Respondent was represented by Mr Dan Williams, Partner and Ms Sophie Croft, of Minter Ellison.

[11] Mr Walkaden submitted that the material sought in these Orders relating to contractors was central to the question of redeployment to be considered at hearing. Mr Walkaden submitted that the documents would go towards the argument that there was a position or work for the Applicants to be redeployed into, either with contractors who perform work within the Respondent’s enterprise, or as associated entities of the Respondent. Mr Williams submitted that the Respondent has no ability to ”redeploy” the Applicants to a contractor, as they had no control over such, even if the concept of “enterprise” was broad, and further that the Applicant had no evidence of contractors being associated entities of the Respondent and that the production of the documents would be oppressive to the Respondent.

[12] The items regarding contractors’ hours were not granted as the Respondent agreed to provide a list of contractors engaged by the Respondent, detailing whether the contractors were associated entities, and whether any contractors performed work that could be performed by the Applicants.

[13] With respect to the workplace relations policies items, I declined to make the Order sought in relation to this item due to the previous item already granted in relation to specific workplace policies. The contested item sought a very broad range of policies in relation to workplace relations, industrial relations or human rights that would provide a significant amount of irrelevant material to the consideration of the matter. With regards to the Rio Tinto Ltd Order, it was considered that the Order was too broad and of limited genuine relevance to the considerations of the matter. However, it was put to the Respondent that it was their obligation to demonstrate, in accordance with the Full Bench decisions, that an appropriate redeployment exercise had been conducted and the parties were afforded an opportunity to file further evidence in relation to the re-deployment exercise.

[14] Directions were set by consent and the hearing dates of 9 and 10 February 2015 were adjourned. The matter was listed for hearing and was heard in Brisbane on 2 and 3 March 2015.

[15] The Applicants were represented by Mr Adam Walkaden - National Legal Officer (CFMEU). The Respondent was represented by Mr Dan Williams, Partner and Ms Sophie Croft, of Minter Ellison.

[16] Whilst not all of the evidence and submissions in the matters have been referred to in this decision, all of such have been considered.

Relevant legislative and Agreement provisions

[17] The application has been made pursuant to s.394 of the Act, which provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)...

[18] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[19] There is no dispute that the application was filed within the time period prescribed in s.394(2) of the Act.

[20] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) of the Act, being that the dismissals were consistent with the Small Business Fair Dismissal Code.

[21] The Respondent has raised an objection to the Commission’s jurisdiction on the basis that the terminations of the Applicants’ employment were genuine redundancies. In accordance with s.396(d) the Commission must consider this matter prior to considering the merits of the application. Given the jurisdictional issues and the merits of the matter were interwoven, by agreement, the jurisdictional objection and the merits of the application were heard conjointly.

[22] An unfair dismissal does not include a dismissal where it was a case of genuine redundancy:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[23] A genuine redundancy is one within the meaning of s.389 of the Act which states:

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.

[24] The Agreement deals with consultation regarding change and redundancy as follows:

14. Introduction of change

The Company will advise and discuss with employees any decisions taken by the Company that are likely to have a significant impact on jobs, the work performed, or the way in which work is performed.

15. Retrenchment

Where the Company has decided to reduce the number of employees, each employee retrenched will receive entitlements in accordance with the provisions of the Rio Tinto Retrenchment Policy.

Retrenchments will be based on merit and the needs of the business, but not on seniority.

[25] Whilst the Applicant does not concede that the consultation of the redundancy decision was perfect consultation, this is not a matter being pursued in the consideration of the alleged redundancies.

Background and Submissions

[26] Mr Cochrane commenced employment with the Respondent in 2011 as an operator/maintainer. On 2 October 2014, his employment was terminated on the grounds of redundancy. The Applicant submitted that his dismissal was unfair, as it was not a case of genuine redundancy as his job was still required to be performed as per s.389(1)(a) and alternative options for his redeployment had not been exhausted as per s.389(2), within the Respondent’s enterprise or that of an associated entity of the Respondent.

[27] The Respondent is a subsidiary of the Rio Tinto Coal Australia (RTCA) Group, which is a subsidiary of Rio Tinto Ltd. In addition to Kestrel, RTCA also has the following subsidiary companies that operate coal mines: Hail Creek Coal Pty Ltd (Hail Creek Mine in Central Queensland), Bengalla Mining Company Pty Ltd (Bengalla Mine in New South Wales); and Coal & Allied Industries Limited (Hunter Valley Operations and Mount Thorley Warkworth, both in New South Wales). Additionally, there are associated entities of Rio Tinto Ltd, outside of the RTCA Group, including the Rio Tinto Iron Ore Group.

[28] The consideration of a redundancy requires an assessment of all the matters in s.389 of the Act.

s.389(1)(a) - No longer required to be done

[29] In considering when a person’s job is no longer required to be performed, the Explanatory Memorandum to the Fair Work Bill relevantly provides:

“Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy.  If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.  Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

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



• 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.

1549.  It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy.  This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551.Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed.  For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. 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...”

[30] The Respondent undertook an organisational restructure in October 2014.

[31] Mr Walkaden, on behalf of the Applicant submitted that the Respondent had failed to meet the obligations under s.389(1)(a), that is, that the Applicant’s job was still required to be performed.

[32] Mr Walkaden referred to the decision of Ulan Coal Mines Limited v Horwarth (Ulan No.1) 2 and the distinction between jobs and duties. Mr Walkaden submitted that the inquiry (into whether the job is required to be performed) is not directed to whether there are duties left to perform, rather that the inquiry should be to whether the job remains after the restructure. In Ulan No. 1, the job had changed, while the duties remained. Mr Walkaden stated that the inquiry is directed to the job. In relation to this, Mr Walkaden considered that, relevantly, jobs remained (that were undertaken by contractors), that the employees in question could have performed, and therefore, the job was still required to be performed.

Shotfiring employees

[33] Mr Walkaden submitted that there were two issues in relation to s.389(1)(a), the first in relation to the shotfiring work undertaken by development team employees, and the associated use of contractors from Mastermyne. Mr Walkaden referred to the evidence of Mr Lawler, (given in his third witness statement), that, in August of 2014, the Respondent increased the number of contractors from Mastermyne NLS (National Labour Solutions) for a fixed term of three months.

[34] Mr Lawler stated as follows:

“30. In August 2014 Kestrel temporarily on-boarded more labour from NLS. This however was to support Kestrel during a period of fixed scope work (shotfiring activities) for a fixed term of three months. Because it was fixed scope/fixed term work, Kestrel elected to engage contractors to perform the work rather than employing new staff for a short period. Kestrel had a number of employees working in development who had shotfiring experience, and so those employees were released from the development work for that period and the NLS labour backfilled the roles in development during that period. Shotfiring work is different to the work that was performed by any of the Applicants. Attached and marked JL-42 is a copy of the correspondence sent from Kestrel to NLS dated 7 August 2014.

31. Following the completion of this shotfiring work, one of Kestrel's other labour support providers, Advanced Mining, withdrew all of its labour after Kestrel issued it with a notice to reduce the number of contractors on site (this is discussed at paragraphs 3 5 and 36 below). Due to this withdrawal of labour, Kestrel extended the duration for NLS to provide this additional labour following the completion of the shotfiring activities to cover the withdrawal of Advanced Mining's labour.”

(emphasis added)

[35] The correspondence from Kestrel to National Labour Solutions on 7 August 2014 stated as follows:

“... This correspondence is to provide written confirmation of the total numbers and labour classifications required to be sourced and deployed into Kestrel Mains development for the purpose of supporting shotfiring activities with a target date of the 25th of August 2014...”

[36] The correspondence details that up to 8 operators were required to be supplied by NLS to perform development operations task in the Development Team, and up to 12 operators were required to be supplied to support stone excavation via bulk shotfiring techniques in the Development team.

[37] Mr Walkaden submitted that, while Mr Lawler stated that the Mastermyne employees were put on to assist with shotfiring activities, it was actually permanent employees who worked in the development team, who were released from development work, to do the shotfiring work.

[38] Mr Walkaden submitted that this created a hole in development, and the company filled that hole by increasing the number of contractors from Mastermyne. Mr Walkaden stated that the three operator/maintainer Applicants were from the development team, and therefore the three Applicants had the skills and competence to do the work that was performed by these Mastermyne employees, and that the timing of introducing these contractors was “crucial”. On this issue, Mr Walkaden referred to the evidence of Mr Lawler that, in August of 2014, the restructure was being contemplated by the management team. Mr Walkaden submitted that at the same time as the restructure was being contemplated, the company increased the number of Mastermyne employees on the site to fill work (not shotfiring work), but, he argued, to fill work that three of the Applicants were competent in and capable of doing.

[39] Mr Walkaden submitted that, but for the introduction of those contractors, the three operator/maintainer Applicants may have escaped redundancy.

[40] Mr Lawler stated that this contract work was for a fixed term of three months. Mr Walkaden referred to the evidence of Mr Scott Cochrane, a Deputy/ERZ Controller employed by the Respondent, in his statement dated 25 February 2015, as follows:

“25. I refer to paragraph 30 of the Third Lawler Statement. Each of the four applicants has the necessary skills and competencies to perform the work in Development that Jonathan Lawler says was backfilled by the Mastermyne contractors.

26. I understand that many of the contractors engaged at this time are still working at the Kestrel Mine on a regular and ongoing basis. These contractors are working mainly in Development Support as Operators. These contractors are working in the same crews and to the same roster as permanent employees.” 3

[41] Mr Walkaden submitted that Mr Scott Cochrane was not cross-examined on paragraph 26, and put to Mr Lawler, in cross-examination, that paragraph 25 and 26 were accurate. Mr Lawler was cross examined by Mr Walkaden on this issue as follows 4:

“MR WALKADEN:  Now, Mr Lawler, can you turn to paragraph 25 to 26 of Mr Scott Cochrane’s statement?---Yes.

You were asked some questions by my friend when you first stepped into the witness box and made a comment about certain paragraphs and matters in Mr Cochrane’s statement.  Do you recall that?---Yes.

You didn't say that paragraph 25 is incorrect, did you?---I don't believe so, no.

And you didn't say that paragraph 26 is incorrect, did you?---I don't believe so, no.

And that is because the Mastermyne employees who are put on in August of 2014, many of those persons are still at the mine, aren’t they?---I'm sorry, could you say that again?

And that is because many of the Mastermyne employees that were put on in August of 2014 are still at the mine, aren’t they?---I'm not sure.

Okay.  You don't know?  So you don't know whether those persons are still at the mine on a regular and ongoing basis, do you?---I'm not sure.  Hypothetically speaking, they could be if contractors from another area of the mine left and then they backfilled that position, but for the purpose of that shot firing activities that that was fixed and constrained.  The possibility if they are there is that if a contractor from another area left the organisation, they could have stayed on and sort of went into that other area.

But these Mastermyne employees who are put on to assist with the shot firing didn't perform any shot firing work, did they?---No, it was the employees that did.  Yes.

Yes.  And do you accept that the employees who are moved from development to the shot firing – you accept that there was a hole created and you accept that the applicants could have filled that hole.  They had the skills and competencies to do that work?---For that temporary work.

To do the work.  Let’s leave to one side the period, to do the work?---The shot firing work?

No.  Development work?---Development work?  Yes, based on my understanding they could; yes.

And if what Mr Cochrane is saying at paragraph 26 is correct, and many of those contractors are still at the mine on a regular and ongoing basis working in development, it could have been the case that the applicants could still be doing that work.  Correct?---Well, not necessarily because we wouldn't deem that the contractors and the way in which they perform work to be a suitable redeployment opportunity for full-time employees, given the nature of contractors can come and go and we can cease the work that they do at any time.

Would you accept that even allowing direct employees a stay of execution of three months or six months or eight months and then seeing what happens is better than being made redundant without that stay of execution?---No, not necessarily.  I mean, I guess what you're suggesting to me could be a case where we’d be constantly making employees redundant, bringing employees back on and being redundant if we were going to be getting them to do the type of work that contractors do.

Do you accept things change in terms of the profitability and sustainability of the operation?---I can accept that, yes.

You don’t have a crystal ball, do you, Mr Lawler?---Unfortunately not.

To the best of your knowledge, your contemporaries in the management team don’t have a crystal ball?---That's true.

It could certainly be the case that things could turn around and the position of the business could improve over a three or six-month period?---It’s possible but very highly unlikely.  In fact, I would say that the probable answer is that it’s going to go the other way.

Do you accept the proposition that having a job at least possibly a short period of time, three or six months, is better than being made redundant without that opportunity to see how it goes?---Well, I believe that – like I said, that’s not necessarily the case given the work that those contractors do and the comings and goings of that nature of work.”

[42] Mr Walkaden submitted that many Mastermyne employees who were put on at the same time that the restructure was being contemplated, are still on the site, and many of them are still working on a regular and ongoing basis, “embedded” in the crews 5, performing work that is still required to be done, and could have been performed by the Applicants.

[43] Mr Walkaden referred to Mr Lawler’s third statement, at [18], where Mr Lawler stated, “If Kestrel identifies there is a need for permanent ongoing labour in a particular area of the mine we always prefer to convert a contractor role to an employee role”. Mr Walkaden submitted that this was incorrect and rendered Mr Lawler’s evidence unreliable, given that in practice, in the circumstances at hand, the opposite had occurred.

[44] Mr Walkaden stated that the Union’s argument was similar to Mr Scott Cochrane’s evidence, that contractors should only be employed for peak periods or to cover off specialists in their regular work. Mr Walkaden submitted that this was not the case at the Kestrel mine, where there are contractors who are ‘embedded’ in the organization to the detriment of employees. Mr Scott Cochrane gave evidence (in response to paragraph 18 of Mr Lawler’s third statement), that there are a number of contractors working on a regular and ongoing basis at the Kestrel Mine, and stated “The contractors work side by side with permanent employees in the same crews. The contractors perform the same work and work to the same rosters as permanent employees.”

[45] Mr Walkaden clarified the Union’s argument as follows:

“What we say is I’m distinguishing between what we describe as the embedded contractors and we don’t make a submission that the failure of the employer to displace those embedded contractors prior to displacing the permanent employees is relevant in the context of section 389.” 6

[46] Mr Walkaden submitted that the engagement of the Mastermyne contractors, in connection with the shotfiring work, is relevant in the context of section 389, and is relevant to the merits of the matter.

[47] Mr Walkaden conceded that there were less jobs as there was a reduction in the number of operator/maintainer positions, but emphasised that, at the same time that redundancies were being contemplated, the company increased the number of employees from Mastermyne to do operator/maintainer work in development, and therefore there was a reduction in jobs, but the jobs were still there.

[48] Mr Walkaden distinguished the situation from that in the case of Ulan No. 1, where the job had changed, in circumstances where the company had determined the requirements that one must have, to be suitable for the job, had changed. Mr Walkaden stated that this situation was not one where the requirements for a mine worker has gone from having no trade qualification to a trade qualification. He stated that the job remained the same, but that it was “just being performed by somebody else, and that somebody else, in connection with this shotfiring work, was the Mastermyne employees” 7.

[49] Mr Walkaden submitted that Mr Scott Cochrane’s evidence demonstrated that the job is still there, but is just being performed by somebody else.

[50] Mr Walkaden summarised the first point in relation to s.389(1)(a) as follows:

“This isn't a situation where the union is saying a contractor should be displaced to give way for a permanent because, as I've indicated, at the contemplation stage of the redundancies the employer increased the number of persons coming into the operation. On the evidence, many of those jobs - the evidence of Mr Scott Cochrane - continue within the operation. That's the first point as to why three of the four applicants - that's the first point in relation to 389(1)(a).”

[51] The Respondent submitted that the Applicant’s submissions, that Kestrel required the role of the Applicant to be performed by someone following their dismissal, had no basis. It was submitted by the Respondent that the phrase ‘the employer no longer requires the person’s job to be performed by anyone’ should actually be read as ‘the employer no longer required the person’s job to be performed by another employee (of Kestrel Coal)’, according to the established principle under the common law. This principle, he stated, was discussed by (then) Commissioner Raffaelli in the first instance Decision of Howarth and others v Ulan Coal Mines Limited 8 (Ulan No. 1 First Instance Decision).

[52] The Respondent also referred to Deputy President Lawrence’s decision in Teterin and others v Resource Pacific Limited T/A Ravensworth Underground Mine 9 (Teterin), as follows:

“[109] The Respondent submits that the engagement of a contractor to provide labour within an employer’s enterprise means that work is not available for deployment. At page five of the supplementary submission of 25 February, Mr Murdoch submits:

“‘Available’ in the context of s.389(2) of the Act, should be applied in the sense of ‘available’ to be performed by employees, but not at the expense of a contractor’s employees.”

[110]I do not think that this is correct if it means that consideration of the work being done by contractors is excluded from consideration as to whether a job, position or other work is ‘available’ as required by Pykett .”

[53] However, the Respondent relied on the other principles drawn in Teterin by DP Lawrence from the related case authorities, and in particular at [21], “a requirement that there be a complete change in the employer’s employment strategy is not appropriate”.

[54] Mr Williams submitted that the real question that Mr Walkaden was asking the Commission is whether Kestrel should have been required to terminate its contractor workforce in preference to its permanent workforce. The Respondent submitted that there is no legal or industrial principle, that an employer has to staff an operation in any particular way, and that the use of the Mastermyne employees was an orthodox use of contractors, engaged to deal with a short-term operational requirements.

Organisational Structure

[55] Mr Walkaden made a second submission in relation to s.389(1)(a), going to the question of the organisational structure. Mr Walkaden referred to a document annexed to the affidavit of Scott Cochrane 10 and submitted that there were vacant roles within the structure and that they have remained vacant since the redundancies were effected.

[56] Mr Walkaden provided, by way of background, the following in relation to the alleged vacant roles:

“You would recall the evidence of Mr Lawler was that in the course of the consultation period, the union made a number of requests for information and put proposals.  One proposal advanced by the union was that all current role vacancies would be abolished.  You may recall the evidence of Mr Lawler was that a role vacancy was a role on the organisational structure that wasn't currently occupied by a particular person.

An obvious example in the document at hand, page 12, is those two positions.  They are role vacancies.  The evidence of Mr Lawler was that the company agreed to that proposal, but the evidence of Mr Lawler was that he couldn't be sure that the company made good on that promise.  Mr Lawler couldn't be sure that indeed all current role vacancies were abolished.

...

What we say is this isn't a situation where all current role vacancies were in fact abolished, and the document I've referred you to demonstrates that.  The document demonstrates there are a number of vacant roles and have always been a number of vacant roles since October of 2014.”

[57] Mr Walkaden submitted that there has been a reduction in the number of operator maintainer roles and according to Mr Scott Cochrane’s evidence 11, in the structure there are still nine vacant roles.  It was submitted on behalf of the Applicant that the job is still there and that this was not a situation that was found by the Full Bench of the Commission in Ulan No. 112, where the job has been reconceptualised, that is, in this case it is the same job; operator maintainer work.

[58] Mr Walkaden referred to the evidence of Mr Lawler, that there was an error in the organisational structure attached to Mr Scott Cochrane's statement, as being incorrect.  Mr Walkaden submitted that Mr Lawler's evidence on that point could not be accepted due to his position in the company, as follows: 

“ It needs to be understood that Mr Lawler was heavily involved in the proceedings.  He's the central HR manager for Rio Tinto Coal in Queensland. The inference that can be drawn is he is aware of the issues in play in these proceedings and gave his evidence in a careful and considered manner to assist the company's cause.” 13

[59] Mr Walkaden stated that the “shotfiring submissions” and the “organisational structure submissions” demonstrated the employer has failed to meet the s.389(1)(a) requirement in relation to the operator maintainers, (the three applicants other than Mr Stickley) that the jobs were no longer required to be performed.

[60] The Respondent submitted that Mr Lawler’s evidence established that Kestrel is not recruiting for the roles that are currently “vacant” in the organisational chart at SC-1 to Mr Scott Cochrane’s statement, and that Kestrel has not recruited any new operator/maintainer roles or electrician roles since the restructure in October 2014. It was submitted that the Kestrel HR team has not yet had the opportunity to update the organisational structure since the restructure. Mr Williams stated that the roles were removed pursuant to an agreement reached with CFMEU during consultation, and that the approved structure did change as a result of the restructure. Mr Williams stated that the organisational structure exhibited at SC-1 is intended to, but does not always reflect the approved structure, which is changeable from time to time.

[61] The Respondent set out that the Applicant’s job was redundant in accordance with s.389(1)(a).

s.389(1)(b) - Consultation

[62] The obligation to consult is not an absolute obligation to consult. The Full Bench in Ulan Coal Mine Limited v Henry Jon Howarth and others (Ulan No. 1) said:

“We do not consider, in the particular circumstances of the present matter and having regard to the obligation under sub-clause 23.1 of the Agreement, that a further round of discussions was required to be held by the Company with the employees to be dismissed, either separately or as a group. This does not mean that such separate discussions might not be worthwhile and appropriate e.g. as part of the consideration of measures to mitigate the adverse affects of terminations or to ensure that opportunities for other employment and assistance are properly examined. However they are not part of the discussions envisaged and required under sub-clause 23.1 of the Agreement and that is the test in these particular circumstances. In different circumstances this will of course vary according to the terms of particular awards and agreements.” 14

[63] The Respondent submitted that it had complied with its consultation obligations under clause 14 - Introduction of Change of the Kestrel Coal Workplace Agreement 2009 by carrying out an extensive consultation process in September 2014 with its employees and the CFMEU.

[64] Mr Walkaden on behalf of the Applicant stated that the Applicant was not contesting but not agreeing that the Respondent had discharged their consultation obligations, as follows:

“MR WALKADEN: In relation to the second element which is section 389(1)(b), whether the employer has complied with their obligation to consult in a modern award or enterprise agreement, in the outline of submission that was filed, paragraphs 48 to 51, the applicant says it intends to reserve its position as to whether any contention is advanced in relation to this second element. I can confirm that we will not be making any submission in relation to this second element. Our position is we don’t concede, but we don’t intend to make a submission that the employer has failed to meet its consultation obligation in the matter.” 15

...

“THE COMMISSIONER:  The distinction between those two, because I understand you’ve taken a particular position on the consultation provisions;  that you’re not conceding that point, but are not advancing further criticism, as I understand.  Well, that mightn’t be the right word, not advancing that in relation to the jurisdictional tests;  that’s correct?

MR WALKADEN:  Yes.  But just for absolute clarity the principal position I articulated about the contractors, that’s not pressed for the purpose of this application, so it’s the union’s position and it’s the position that the union will continue to advocate for outside of these proceedings, but in relation to the issues that you are required to determine, that is not a submission being advanced.” 16

[65] I accept that the obligation to consult was discharged in accordance with the obligations in the provision of the Agreement 17, and the issue of contractors, even though the Union has stepped aside from pursuing such, is dealt with elsewhere in this Decision.

s.389(2) - Redeployment

[66] A significant issue in dispute, as part of the redundancy process, is in relation to the redeployment process.

[67] The relevant organisational structure of the Respondent was outlined in their submissions. The Respondent is a subsidiary company of Rio Tinto Coal Australia Pty Limited (RTCA Pty Ltd) and operates the Kestrel Underground Coal Mine. In addition to the Respondent company, RTCA Pty Ltd has three subsidiary companies which also operate Coal Mines; Hail Creek Coal Pty Ltd ( Hail Creek Mine in Central Queensland), Bengalla Mining Company Pty Ltd (Bengalla Mine in New South Wales); and Coal & Allied Industries Limited (Hunter Valley Operations and Mount Thorley Warkworth, both in New South Wales).

[68] It was submitted that RTCA Pty Ltd and its four subsidiary companies make up the Rio Tinto Coal Australia Group (RTCA Group) which exists within the broader Rio Tinto Group.

Relevant case authority on redeployment

[69] Both parties referred to a range of relevant case authority on the issue of redeployment.

[70] The Respondent submitted that the test is whether, in all of the circumstances, it would have been reasonable for the Applicant to have been redeployed. It was submitted that, while an employer's process in seeking to identify redeployment opportunities is a relevant enquiry, the question to be answered is an objective one, based on all of the circumstances. It was submitted by the Respondent that it did make all reasonable attempts to identify redeployment opportunities, but that, even if it had not exhausted redeployment opportunities, the redundancy would not fail to be 'genuine' if, on the facts, there was in fact no reasonable redeployment option available.

[71] In examining the redeployment process in Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2) 18 the Full Bench said:

“...The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”  19

(emphasis added)

[72] Further, the Full Bench said in assessing whether redeployment was possible:

“...It is an essential part of the concept of redeployment under s.389(2) that a redundant employee be placed into another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. 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. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”  20

(emphasis added)

[73] Mr Walkaden noted the caution that the Full Bench sounded in relation to requiring that a displaced employee is engaged in a competitive selection exercise 21. Mr Walkaden particularly emphasised that similar considerations for redeployment should be given to associated entities of the Respondent, as per Ulan No. 2 above, and that overall managerial control is a relevant consideration.

[74] Mr Williams also emphasised that Ulan No. 2 at [27] provided that the degree of managerial integration between different entities is relevant when considering redeployment to an associated entity, and submitted that redeployment has to be within the gift of the employer to achieve.

[75] The Applicant also referred to the Full Bench decision in Technical and Further Education Commission T/A TAFE NSW v Pykett (Pykett) 22.

[76] In Pykett, the Full Bench considered the proper construction of s.389(2) which, it held, involved a consideration of whether there was work the employee could reasonably have been engaged to perform with their employer, “whether or not it constituted an existing identified position or job” 23.The Applicant also referred to Pykett and the observation of the Full Bench that an employer who sought to rely on the genuine redundancy objection would normally be expected to adduce evidence that would include “canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee”24. The Applicant submitted that the Respondent had not done this.

[77] The Applicant submitted that, as a result of the decisions in Ulan No. 2 and Pykett, a two step process could be identified. First, a job, position or other work must be identified, and second, redeployment to this job, position or other work must be reasonable in all of the circumstances.

[78] The Applicant submitted that the decision in Ulan No. 2 provided guidance as to the matters which will determine whether redeployment would be reasonable, and these included (not exclusively); the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered. It was also submitted that the Decision of the Full Bench in Ulan No. 2 (in relation to the job being suitable), that an employee should have the skills and competence to do the job, did not mean that an employee must have all of the skills and competence to do the job, and that the consideration may encompass a suitable period of retraining 25.

[79] It was submitted by the Applicants that the consideration of matters related to reasonableness of redeployment were discretionary but that, in relation to a broad range of redeployment exercises, “if an employee can get up to scratch and work competently with a reasonable period of retraining”, redeployment could be reasonable 26.

[80] The Respondent also relied on Pykett, and submitted that redeployment is something that the Employer is obliged to do, proactively transferring an employee from one position to another, also referring to Ulan No. 2 in this respect. The Respondent submitted that the requirement to redeploy is framed in the past tense and therefore, as noted in Pykett 27, attention is directed to the circumstances which existed at the time the person was dismissed. In Ulan No. 2, it was held that the question of whether redeployment would have been reasonable, is to be applied, at the time of the dismissal28.

[81] The Applicant also referred to the case of Paul Huang v Forgacs Engineering Pty Limited 29 (Forgacs), in relation to redeployment into a position filled by a contractor. In this decision, Vice President Hatcher considered the issue of redeployment to a position performed by a contractor in the context of s.389(2)(a). The Applicant submitted that the Commission is not precluded from considering redeployment to work performed by a contractor. The Vice President stated as follows:

[37] The question of redeployment to the Management Accountant’s position is a more difficult one. At the time of the redundancy, the position was vacant in the sense that it was not filled by an employee of Forgacs. The work was being done by a “contractor”, in circumstances where Forgacs’ policy was that contractors were to be removed from the organisation before any employee was made redundant. As I have earlier found, Mr Huang was capable of performing the duties of the position. The fact that Mr Turner was perceived as preferable for the position does not mean that it would not have been reasonable to redeploy Mr Huang to the position. I do not consider, for the purpose of s.389(2), that an applicant has to demonstrate that he or she was the best possible person to fill an alternative position in order to satisfy the Commission that redeployment to that position would have been reasonable.

[38] Were they the only relevant circumstances, I would have concluded that it would have been reasonable for Forgacs to redeploy Mr Huang to the Management Accountant’s position. However it is also necessary to take into account the fact that at some time in June or July 2013 and before Mr Huang had been made redundant, Forgacs had committed itself to employing Mr Turner directly in the Management Accountant’s position once an initial six months’ period had elapsed. That commitment appears to have been contractual in nature. There is nothing in the evidence to suggest that the making of that commitment was for the purpose of shutting out Mr Huang from the position; to the contrary, the evidence demonstrates that this commitment was made entirely independently of the redundancy process and on the basis that Forgacs was very favourably impressed by Mr Turner’s work. Forgacs having made that commitment to Mr Turner, the redeployment of Mr Huang to the Management Accountant’s position (thus entirely displacing Mr Turner from the work) would have placed it in a very difficult position with respect to Mr Turner. For that reason, I consider that it would not have been reasonable in all the circumstances for Mr Huang to be redeployed into the Management Accountant’s position.

[82] It was submitted, on behalf of the Applicant, that the Vice President’s comment as to an employee not having to demonstrate that he or she was the best possible person to fill an alternative role was consistent with Ulan No. 2, in that redeployment does not involve a competitive selection process.

[83] The Respondent also referred to the decision of Ventyx Pty Ltd v Murray 30 (Ventyx) and the process undertaken by the employer in that case. In Ventyx, prior to informing the applicant that their position had become redundant, the employer had exhausted all redeployment options for the applicant in accordance with its Redundancy Policy. The Respondent outlined that, at the meeting in which the employer notified the employee of their redundancy, it provided that employee with a list of vacant roles within associated entities, some in Australia and some overseas. The Respondent submitted that they were roles that Ventyx Pty Ltd did not consider were reasonable for it to redeploy the employee to, and the employee was instead invited to apply for those roles if he wished to do so.

[84] The Respondent referred to the following observation in that decision about the redundancy process:

“[160] True it is that Ventyx handed to Mr Murray a list of jobs available across the global business, but that was a step that came after Ventyx had exhausted its investigation into redeployment options for the Applicant under its redundancy policy. As Counsel for Ventyx claimed, the provision of further information about the organisation was not a step in a redeployment process itself, and cannot in some manner be held to reflect adversely on the appellant as a consequence.” 31

(emphasis added)

[85] The Applicant referred to the case of Teterin and Others v Resource Pacific Pty Limited T/A Ravensworth Underground Mine  32 (Teterin), in which the Full Bench considered which party bore the evidentiary burden in relation to satisfying the Commission that redeployment would have been reasonable in all the circumstances. The Full Bench found that the employer respondent in that case would have satisfied the evidentiary onus in any case, due to the extensive nature of the evidence it led:

“There can be no doubt that, to the extent the respondent in the proceedings at first instance bore an evidentiary onus with respect to s.389(2), it discharged that onus. It called extensive evidence, principally from Mr Kirsten, concerning the steps the respondent had taken to explore redeployment opportunities and why, ultimately, the appellants could not be redeployed...”  33

[86] The Applicant submitted that it was relevant that the employer in Teterin had canvassed, prior to the employees being made redundant, redeployment opportunities in respect to available work with associated entities of the respondent; and available work by reference to work being performed by contractors engaged by the Respondent at the time of the dismissals.

[87] The Applicant also submitted that case authority dealing with the meaning of redeployment indicated that it involves a pro-active process on the part of the employer where the affected employee is treated more preferentially, than an external applicant, for a vacant position 34.

[88] The Respondent relied on the case of Aralar v Rio Tinto Aluminium Ltd T/A Rio Tinto Alcan - Gove Operations (Aralar) 35 where, it submitted, Rio Tinto Alcan - Gove Operations had exhausted all reasonable redeployment opportunities within the business and associated entities prior to making Mr Aralar redundant. Further, the Respondent submitted that after Rio Tinto Alcan -Gove Operations had exhausted its redeployment search, it invited Mr Aralar to apply for roles within other Rio Tinto entities, employers over which the company had no overriding central managerial control.

[89] The Respondent submitted that the below extract from Roy v SNC-Lavalin Australia Pty Ltd 36 (Roy v SNC) was relevant in considering the reasonableness to redeploy employees to Australian associated entities of the Respondent over which it has little or no overriding central managerial control:

“[41] Other difficulties arise in respect of overseas entities within a company group where those entities operate their own distinct human resource functions, policies and procedures and there is no overriding central managerial control...”

[90] The Respondent also referred to Roy v SNC at [33] and [40], whereby an employer is obliged to consider the financial burden of redeployment. The Respondent submitted that it had not been able to find a case where redeployment over great distances was considered reasonable.

[91] The Respondent relied on the decision of Ventyx 37 as authority that there is no requirement for an employer to redeploy an employee to any vacant position in the business or an associated entity of the business.

[92] The Respondent relied on the decision of Ulan No. 2 38 to submit that, firstly, the job must be suitable and that an employee should have the skills and competence required to perform the job immediately or after a reasonable period of training and regard must be had to an employee's qualifications and competencies that are known to the employer. The Respondent accepted, according to the decision in Aralar39 that, if an employee is identified as having the skills and competence required to perform a vacant role, that employee should not be required to compete for any vacant roles, at the time the employee is being considered for redeployment.

[93] The second limitation, the Respondent submitted, is that it must be reasonable in all of the circumstances (for both the employer and employee) to redeploy the employee to the vacant role. The Respondent submitted that “If an employee is suitable for a vacant role, in the sense they are competent and have the requisite experience, but the cost to the employer to redeploy an employee to a role is so significant, then in those circumstances it will not be reasonable to redeploy an employee to the role. This is contemplated by s.389 of the FW Act”. The Respondent also submitted that if the vacant role (for which the employee is suitable) is based in a location that is significantly different to the employee's existing role, it may not be reasonable to redeploy the employee to the role, according to Ulan No. 2 40.

Summary of Applicants’ case on redeployment

[94] Mr Walkaden submitted that there was no evidence that the Respondent specifically investigated redeployment opportunities for each of the Applicants, prior to their termination of employment.

[95] Mr Walkaden made four submissions in relation to s.389(2).

[96] The first submission was that it would have been reasonable for the Applicant to be redeployed to the work ultimately performed by Mastermyne contractors in relation to shot-firing work. This work was addressed in s.389(1)(a) in relation to whether the job was required to be performed. Mr Walkaden submitted that, even if the Commissioner was satisfied that this work did not satisfy s.389(1)(a), that there was guaranteed work for at least three months that the Applicant could have been redeployed to.

[97] Mr Walkaden submitted that if the Respondent’s submission is that company wants to employ employees or engage contractors at their discretion, Mr Lawler’s evidence as to the company’s preference to employ permanent ongoing labour is contradictory. Mr Walkaden submitted that giving the Applicant a stay of execution for a period of three months would have reasonable and consistent with the company’s view that they prefer permanent employees over contractors. It was submitted that it was reasonable to redeploy the Applicant according to the considerations in Ulan No. 2, and that there were no issues as to the Applicant’s qualifications, skills, location or remuneration.

[98] The second submission was that redeployment to the vacant roles on the organisational structure (addressed by Mr Walkaden in relation to s.389(1)(a)) was reasonable.

[99] The third submission was that redeployment to other vacant jobs within RTCA was reasonable. Mr Walkaden identified three positions that were vacant at the time of the redundancies where redeployment would have been reasonable, as follows:

• Operator Position at Hunter Valley Operations



• Operator Position at Mt Thorley Warkworth Mine



• CHPP Operator Maintainer at Hail Creek Mine

[100] Mr Walkaden submitted that the lists of positions for consideration provided by Mr Innes to Mr Lawler revealed the above positions 41, which satisfied the first step (identifying the job, position or other work). Mr Walkaden then addressed the reasonableness of redeployment. Ms Barwell stated that Mr Innes is a business recruitment partner in her team, who supports RTCA with their recruitment42.

Reasonableness - location

[101] Mr Walkaden submitted that a relevant consideration to the reasonableness was the location of the positions, two being located in New South Wales, and the other in Queensland.

[102] Mr Walkaden referred to the evidence of Mr Leslie Cochrane in cross-examination, that his preference was to stay in Brisbane and do fly in fly out work (the situation during his employment with the Respondent) but that he would be willing to re-locate permanently. Mr Cochrane stated that he was a single man 43 and prepared to relocate and also stated as follows:

“MR WILLIAMS: I’ll ask it again. In paragraph 38, you said that you’re happy to undertake mining work for which you are appropriately qualified, but then you go on to say “on a fly-in/fly-out basis”, and my question to you is that that’s because you want to stay in Brisbane if at all possible, don’t you? That would be my - that’s - if there’s a position somewhere else, I would take it, but yes, that is correct.

It’s your preference. You’ve got a job in Central Queensland which means you can still live in Brisbane, haven’t you? Yes.

Yes. You haven’t applied for any roles outside of the State of Queensland, have you? No.

So you haven’t applied for a role with Rio Tinto in Weipa, for example, have you? Never been given an opportunity, so no.

Well, you could check for advertisements for jobs? I was told at the time of the redundancy there was no jobs in Rio Tinto. So, no.

And you’ve not looked for roles outside of Queensland? I have looked for roles outside of Queensland, yes.

Have you applied for any of them? Yes.

I thought you told me a moment ago that you hadn’t? Within coal, underground coal?

Yes, so which is true? Have you applied for roles outside of Queensland? Sorry, I misinterpreted the question. Yes, I have applied for roles in coal, underground coal mining, outside of Queensland.

In New South Wales? Yes.” 44

[103] It was submitted on behalf of the Applicant that location was not a barrier in context of reasonableness of redeployment.

Reasonableness - training

[104] It was submitted on behalf of the Applicant that the Respondent had exaggerated length of training that would be required to employ the Applicant in another (non-underground coal mining) operation. The Applicant submitted that any training required was consistent with Ulan No. 2, and that a suitable period of retraining should have been offered prior to retrenchment.

[105] Therefore, Mr Walkaden submitted, it would have been reasonable to redeploy the Applicant into one of the three roles identified within the Rio Tinto Coal Australia Group.

[106] The fourth submission in relation to redeployment is that it would have been reasonable to redeploy the Applicants outside of RTCA, to iron ore positions within an associated entity of the Respondent.

[107] Mr Walkaden referred to the evidence of the Applicants (except Mr Cochrane) in their second statement that it took roughly six months to be competent to work underground, but during that time they were working productively 45. Mr Logovik stated it only took him three months, two weeks of which were spent in a classroom and the remainder on the job training46. Mr Walkaden also referred to the evidence of Ms Barwell (Recruitment Specialist - East Coast, People Services, Rio Tinto Ltd) having previously employed a “cleanskin” (a person with no mining experience at all) for operator work47. Mr Walkaden submitted that on Ms Barwell’s evidence, it would have been reasonable to redeploy the Applicant, and that it wasn’t for the Commission to stand in the shoes of the employer to make a decision about who would be the best candidate for the job, in this regard, he referred to Vice President Hatcher’s decision in Forgacs.

[108] The Applicants submitted that the Respondent should have genuinely considered redeployment options within its enterprise, or that of an associated entity, and that this required reasonable efforts to engage with the affected employees and to attempt to match the skills and experiences of the employees to available work within the Respondent’s enterprise or other associated entities.

[109] The Applicant submitted that Rio Tinto Ltd ultimately controls the Respondent via its subsidiary company RTCA. It was submitted by the Applicant that there is no evidence that the Respondent undertook the type of inquiry on behalf of the Applicant, as envisaged in Ulan No. 2 at paragraph [35], into redeployment opportunities with associated entities.

[110] The Applicant submitted that the fact that the Respondent did not actively consider redeployment options with associated entities should not be held in its favour in respect of a general finding under s.385(d), given the beneficial purpose of s.389(2), stating “it would be a perverse result of the effect of s.389(2) could be undermined by wilful ignorance, or lack of initiative by a respondent employer in circumstances where it should have made a reasonable effort to redeploy an employee facing redundancy”.

[111] Mr Walkaden referred to Mr Lawler’s evidence that redeployment was limited to RTCA. The relevant extract of the transcript is as follows:

“MR WALKADEN: You see at paragraph 68 you say you obtained the list of vacant roles within the RTCA group? Yes.

And it's the case that the redeployment opportunities that were looked at by the company prior to the redundancies or prior to determination was limited to RTCA, correct? Yes.

And the list that you discuss at paragraph 68 of your first statement, that was provided by, in your words, "a central recruitment team"? Yes.

Do you see those words? Yes, I do.

Ms Barwell is the superintendent of that team isn't she? ---Yes.

You understand that Ms Barwell is giving evidence in this proceedings? I do understand that. Yes.

...

And you understand that Rio Tinto Limited is the parent company of RTCA? I would say that that makes sense to say that. Yes.

Yes, in effect Rio Tinto Limited is the listed Rio entity on the Australian and London Stock Exchanges. You understand that to be the case? I'd have to take your word for it.

...

You accept that it appears that that recruitment team are indeed employees of Rio Tinto Limited? Look, it could be the case, yes. I'd just expand to say that when I attained this list it actually wasn't from Nicola. It was from a person who reported to Nicola. So assuming they're similar employee – employment sort of entities, I would –I could accept that.

Yes, and that person is Mr Innes? Correct, yes. Ian Innes.

And assuming what Ms Barwell is saying at paragraph 6 is correct it appears that the recruitment team recruits employees broader than just RTCA? Yes, it would.

And can I now draw your attention to paragraph 71 of your first statement? Yes.

Can I ask you to read the second-last sentence of paragraph 71? "Similarly from a - - -

Yes, just read it to yourself Mr Lawler? Sorry. Yes.

That sentence is wrong, isn't it? Well, from an operational human resources perspective I maintain that they are distinct. I would accept that from a recruitment perspective it seems as though persons working that – within that group also recruit for other areas outside of RTCA.

And it appears that the persons who do the recruiting are employees of Rio Tinto Limited? Based on evidence, yes.

Based on the evidence of Ms Barwell? Of Ms Barwell.

So you accept though, don't you, that the second last sentence at paragraph 71 is wrong? I can accept that.

Can I draw your attention to your second witness statement and ask you to turn to paragraph 69, Mr Lawler. Can I ask you to read the final sentence of paragraph 69 to yourself? Yes.

You accept that sentence is wrong as well, don't you? No, I wouldn't.

Doesn't it appear to be the case that the recruiting is done by the parent company, Rio Tinto Limited? It would appear that, yes.

And so in terms of the ability to influence the parent company, Rio Tinto Limited appears to have the ability to influence recruitment decisions at each of its subsidiary companies? No, I still wouldn't say that Kestrel has an ability to influence, notwithstanding that there's the recruitment team that goes across other business units. I would maintain that Kestrel as an operation has no influence in recruitment decisions outside of our group.

Would you accept that Rio Tinto Limited has the ability to influence recruitment decisions at the Kestrel Mine? Well, no, I couldn't accept that. The statement of Rio Tinto Limited being able to influence really goes outside of it's the person, or it's people in certain roles, that have an ability to influence. I couldn't accept that that be the case.

But those persons are for instance Mr Innes and Ms Barwell, aren't they? Well, Ms Barwell and Mr Innes perform a recruitment function. You know, in terms of how our recruitment process works whilst they may facilitate the recruitment processes and coordinate the recruitment process occurring, it's the hiring leads of the individual roles which, you know, are the influencer or the decision maker around our recruitment process.

Can I summarise your evidence in this way. Is it the case that the operational – there's a degree of interaction between the various business units in terms of the mechanics of conducting a recruitment exercise? Between business units?

Across business units. So for instance Ms Barwell, that appears to be for her team, the east coast recruitment and talent people services team? Yes.

Paragraph 6(a), there appears to be some integration for RTCA as well as RTA, which is the aluminium and bauxite mining operations? There's no interaction between the two. She would simply run recruitment processes across both of those business units.

Okay, do you accept then that there's a degree of integration across those business units? I'm sorry, I don't really understand what you mean.

At paragraph 6(c) Ms Barwell says that the group's functions, there's some shared support? So there's shared support across finance, info systems and technology, and technology and innovation. So I'm sorry, could you repeat your question?

I can. Do you accept there appears to be a degree of integration on what might be described as back office functions across various business units? Okay, I understand. I would accept that there's certainly shared support across some of those business units.

But your evidence is that the actual approver of the decision to recruit a particular person rests with the operational manager within the particular business unit. Is that your evidence? Yes, that's right.

So in terms of the influence, the ability to influence an outcome, you say that rests with the particular operational manager, do you? Yes, I would.

And so would that mean that for instance Mr Watson, he would be someone who would be – have a fair bit of say, wouldn't he, about recruitment at the Kestrel Mine? For Kestrel roles in his area, yes.

And who's Mr Watson's equivalent at the Hail Creek Mine? There's an open cut mine manager.

Yes? Mr Mike Priestley.

Okay, and is it your evidence that Mr Watson would have no influence over a recruitment decision made by Mr Priestley at the Hail Creek Mine? Yes, it is.

And vice versa? Correct.

So in terms of the ability to influence, the issue about which entity the person, the operational manager, works in isn't particularly relevant is it? I'm sorry, could you say that again?

The issue about whether one can influence a recruitment decision at Rio Tinto is a matter of the particular operational manager, not the actual entity where the job comes from? Well, it's the hiring lead which in either of those cases would be Mr Watson at Kestrel or Mr Priestley at Hail Creek which is the - you know, has influence and he's part of a decision making process for recruitment at those sites.” 48

[112] Mr Walkaden submitted that the evidence of Ms Baker (Superintendent Recruitment, Recruitment and talent, People services, responsible for recruitment of Rio Tinto Iron Ore Group) was that there were a number of vacant operator maintainer roles within the iron ore business from 1 September 2014 to 7 November 2014 49. In relation to the issue of overall managerial control, Mr Walkaden submitted that the recruitment function outlined in the evidence of Ms Barwell and Ms Baker was an example of integration between the Rio Tinto Ltd entities.

[113] In particular, Mr Walkaden referred to the statement of Ms Barwell at paragraph 6(c), where the shared support services which are performed by the parent company were detailed, including finance and IT, which, it was submitted by Mr Walkaden, demonstrated that there was a level of integration and control between the various entities.

[114] Mr Walkaden submitted that if the Respondent’s submissions is that there is no integration between Rio Tinto Ltd because the decision as to who gets the job is made by a person at Kestrel, then there could be no redeployment within the RTCA group, as the decision maker within another RTCA mine would not have the capacity to influence a recruitment decision at Kestrel or vice versa 50.

[115] In consideration of the vacant positions within iron ore, the evidence of Ms Baker was that redeployment to these positions would not be reasonable, due to location, and employer preference. Mr Walkaden referred to his earlier submissions on location. With respect to the employer prioritising applications for local residents, Mr Walkaden referred to the decision of Forgacs and submitted that the Commission is not required to pick the best or most appropriate person for the job, but to form a view about whether redeployment would be reasonable.

[116] Mr Walkaden submitted that there was no disclosure as to the number of vacant positions within iron ore in the relevant period or whether they were filled by people from an Indigenous community pursuant to the company’s obligations. Mr Walkaden also referred to Ms Baker’s cross-examination where she agreed that she had no reasonable basis for expressing the opinion that there is a drastic difference between an underground coal mine and an open cut iron ore mine.

[117] With respect to operator positions, Mr Walkaden submitted that the Applicant has met the minimum period of experience of three to five years. Each of Applicants have 3-5 years experience.

[118] Mr Cochrane in his statement details a start date of 2011 which, it was submitted, satisfies the minimum requirement for experience.

[119] It was submitted that Applicants have met the requirements and redeployment to those positions would have been reasonable in the circumstances.

Summary of Respondent’s case on redeployment

[120] With respect to the Applicant’s submission on shotfiring employees and the use of Mastermyne employees to backfill development work, the Respondent submitted that another employee was not required to perform this work, and that was the relevant consideration. This was discussed in considering s.389(1)(a) above, and whether the job performed by the Applicant was no longer required to be done by anyone. The Respondent submitted that it did not have to redeploy employees into positions filled by contractors, as it was able to implement its own employment strategy.

[121] The Respondent submitted that a scenario where the Applicant could be redeployed to perform work for a contractor of the company, is not a 'redeployment' contemplated under s.389 of the FW Act. It was submitted that Kestrel's contractors are not associated entities of Kestrel and that it has no control over the recruitment decisions of its contractors. Therefore, it was submitted, Kestrel has no capacity to 'redeploy' its employees into those roles, nor is it required to cause any contractor or contractor employee to be removed from the site in order to create a vacancy for a redundant employee.

[122] The Respondent submitted that the roles identified as ‘vacant’ in the organisational structure have not yet been removed from the structure, and that Kestrel is not recruiting for the roles and has not recruited any new operator/maintainer roles or electrician roles since the restructure in October 2014. This was discussed in considering s.389(1)(a) above, and whether the job performed by the Applicant was no longer required to be done by anyone.

[123] The Respondent submitted that it obtained a list of vacant roles from the dedicated Recruitment team within RTCA once it was determined that the Applicants’ positions were to be made redundant. It was submitted that the RTCA's Recruitment team had oversight of all available positions within the RTCA Group.

[124] The Respondent submitted that there were no available redeployment opportunities within the Respondent’s business as a result of the restructuring and redundancies. However, the Respondent submitted that the following vacant roles within the RTCA Group were identified in the course of this process and that the Respondent was confident that all available roles across the RTCA Group had been identified by the Recruitment team during this process, as follows:

• CHPP Maintenance Planner - Bengalla;



• Mining Supervisor - Bengalla;



• Electrical Maintainer - Mount Thorley Warkworth;



• Business Analyst - Hail Creek Mine;



• Process Engineer - Mount Thorley Warkworth;



• HSEC Administration Officer - Health Safety Environment & Communities;



• Leading Supervisor - Mount Thorley Warkworth;



• Specialist - Land & Tenements - Health Safety Environment & Communities;



• Electrical Superintendent - Hail Creek Mine;



• Reliability Engineer - Bengalla;



• Principal Adviser - Safety - Health Safety Environment & Communities; and



• Senior Geologist - Operating Support & Development.

[125] The Respondent submitted that if any of the Applicants had the relevant experience and skills to fill any of these roles, they would not have been required to apply for the role or compete with any other prospective employees (other than any other employees who had been made redundant in the course of the restructure) for the role. If one or more of the Applicants had been suitable for the role, Kestrel would have selected the most suitable candidate based on appropriate selection criteria.

[126] The Applicants held the following qualifications:

• Mr Cochrane - Miner Driver, Miner Bolter, JUG-A-0 V3, Driftrunner 'F' Series and Stone Duster;



• Mr Logovik - Miner Driver, Miner Bolter, JUG-A-O V3, Driftrunner 'F' Series and Shuttle Car;



• Mr McDonell - Miner Driver, Miner Bolter, JUG-A-O V3, Driftrunner 'F' Series and Shuttle Car; and



• Mr Stickley - Electrician, Isolation Officer, Permit Holder, Live Testing Officer and Altair 4 gas Detector.

[127] Taking into account Applicant’s qualifications, the Respondent submitted, the HR team did not identify any roles that any of the Applicants were qualified and competent to perform immediately or after a reasonable amount of training, because:

“(a) Of the site based roles that were vacant across RTCA at the time, each role was quite senior or unique, requiring extensive experience, specialised training or a tertiary qualification. The Applicants, as operators and/or maintainers, did not have the requisite skills or experience (or could not be reasonably re-trained or up-skilled) to fill any of the vacant site based roles within the RTCA Group at the time they were to be made redundant.

(b) Similarly, the Applicants did not have the relevant experience or skills to fill any of the vacant offìce based roles.”

[128] Mr Williams submitted that, on Mr Lawler’s evidence, Kestrel had reviewed vacant roles available across RTCA. Mr Williams submitted that Mr Lawler was in regular communication with Mr Innes (business recruitment partner) and received lists of potential roles for consideration. Mr Williams submitted that the first of the lists tendered into evidence 51, received by Mr Lawler on 22 September 2014, was filtered so as to exclude roles which were not available. Of those remaining, Mr Williams submitted that they did not include any role “reasonably available for the skills and experiences that Kestrel, at least, at that point, had been informed that any of the applicants had”52.

[129] The second list, sent to Mr Lawler on 3 October 2014 53, did not have same filters and contained, as per Ms Barwell’s evidence, roles that were technically open, but were not available because an offer had made or because someone had been hired into the role and the assignment was not yet closed out. Mr Williams referred to Ms Barwell’s evidence that the first and third roles that Mr Walkaden identified within RTCA (Mining Operator at Hunter Valley Operations and CHPP Operator Maintainer at Hail Creek) had the status of an offer having been made in relation to the role54. Mr Williams submitted that, applying the reasoning in Forgacs, where employer had committed itself to employing another employee, it would not have been available not reasonable to employees to be redeployed into roles which had been offered to other employees.

[130] The Respondent submitted that it was reasonable for the other Rio Tinto Coal Australia operations to advise Kestrel at the relevant time what roles were available for redeployed, but that this did not extend to putting their own selection processes on hold while Kestrel was going through its own process.

[131] The Respondent further submitted that Mr Lawler did not accept that the mining operator role would have been suitable based on his experience of the differences of open cut and underground coal mining. In relation to the washplant operator/maintainer role, none of the Applicants had CHPP plant experience or the relevant trade qualification. While Mr Williams conceded that Mr Logovik may have had limited CHPP experience, but this was not known to the company, it was submitted that none of the Applicants would have been suitable for the role. However, the Respondent argued that the submission that the Applicants should have been redeployed into these positions would fail in the first instance, as the jobs were simply not available.

[132] The second Mine Operator role at Mt Thorley Warkworth, was contained in the Green Report, which Ms Barwell estimated was produced in late August or early September 2014 55. Mr Williams submitted that the role does not appear in the lists of September or October 2014, and Ms Barwell gave the explanation that the role had been cancelled and was no longer required or was filled prior to those dates56.

[133] Mr Williams submitted that none of the three positions identified by the Applicant were available, and on Mr Lawler’s evidence, the Applicants would not have been suitable for the roles. However, Mr Williams submitted that if the roles had been available, the Applicants would have been considered for the roles at least up until the point that it was clear they were not asking to be redeployed.

[134] The Respondent submitted that there is no managerial integration between RTCA and non-coal Rio Tinto entities. It was submitted that while the RTCA Group exists within the broader Rio Tinto Group, the Respondent does not have any practical relationship with any of the operations other than coal operations within the RTCA Group. It was submitted that the RTCA Group has a separate executive committee which only has authority for the Australian coal operations within the Rio Tinto Group. It accepted that there is some managerial integration within the RTCA Group, not associated with the shared services function, but rather within the executive team.

[135] The Respondent submitted that Rio Tinto Group entities operate outside of the RTCA Group and have separate human resources and recruitment functions and that the Respondent has no corporate interaction with other Rio Tinto operations, including, for example, iron ore and uranium.

[136] The Respondent submitted that the only obligation to redeploy rested with Kestrel, and therefore it had to have the capacity to achieve that result. Mr Williams stated:

“It’s not enough for the applicant here to demonstrate - and I hold that it has not been demonstrated - that there were roles in associated entities of Kestrel which the applicants might have been suitable for, and they also have to establish that Kestrel, the employer with the obligation, had the managerial authority to insist that the applicants be redeployed into those roles.  If Kestrel did not have that authority, it could never be reasonable for it to fail to do so, and that’s irrespective of how suitable a particular role in an associated entity might have been.”

[137] Mr Williams referred to the decisions in Ulan No. 2 at [27] where the degree of managerial integration between different entities was held to be a relevant consideration in redeployment to an associated entity. The Full Bench also found that redeployment should be considered where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group 57. Mr Williams accepted that the authority existed within the RTCA group, and referred to Mr Lawler’s evidence of the separate executive committee dedicated to Australian coal operations within the RTCA group58.

[138] Mr Lawler’s evidence was that the RTCA group is entirely distinct from other entities in the Rio Tinto Group in terms of operational, human resources and recruitment 59. The Respondent relied on the evidence of Mr Lawler, Ms Barwell, Ms Baker, Mr Duxbury and Ms Scott in support of their submission that there was no integration which would allow a finding that the Respondent had any authority or ability to influence recruitment decisions.

[139] Mr Duxbury, Human Resources Manager of Energy Resources of Australia (ERA) (a subsidiary company of Rio Tinto Ltd) stated that ERA has an “entirely distinct management and recruitment function to that of Rio Tinto and other Australian Rio Tinto business units.” 60 Mr Duxbury also stated that he was not aware of any employee who has been “redeployed” from any other business unit of Rio Tinto Ltd into ERA and that employees transferring from other Rio Tinto business units to ERA are required to go through standard recruitment pathways, including “applying for the role in competition with other candidates, participating in interviews and completing the skills assessment centre testing where applicable”.

[140] Mr Duxbury stated that he had caused a search of vacant roles in ERA between 1 September 2014 and 7 November 2014. He stated that while there were a number of roles available, he has not identified any that would have been suitable for any of the Applicants. He stated that there were operators required to complete a short term project, but that locally based contractors were engaged to prove the services and that bringing on employees for this work was not considered. In addition, he identified a vacancy for an electrical role, which was being performed by a contractor; however, this role was advertised internally as ERA had suitable candidates working on site at the time. The contractor performing the role was employed on a fixed term 12 month contract.

[141] The Applicants’ representative did not seek to cross-examine Mr Duxbury, and his statement was admitted into evidence.

[142] Ms Jasmyn Scott, Recruitment Specialist employed by Rio Tinto Ltd and responsible for the recruitment at Argyle Diamond Mine, stated that the recruitment function of Argyle Diamond Mine is “completely separate” 61 from other Rio Tinto Australian mining operations. Ms Jasmyn stated that there was no formal redeployment process between other Rio Tinto business units and Argyle Diamond Mine and Argyle has no capacity to redeploy any employees to business units outside of Rio Tinto’s Australian diamond mines, and vice versa. Specifically, Ms Scott stated “there is no central managerial control or recruitment function which gives me the capacity or ability to redeploy an employee from another business unit directly into a role in Argyle”62.

[143] In relation to available roles, Ms Scott stated that there was a freeze on recruitment announced in October 2014 and that in November 2014, 22 employees were identified to be made redundant. Ms Scott does not indicate whether these employees were made redundant.

[144] The Applicants’ representative did not seek to cross-examine Ms Scott, and her statement was admitted into evidence.

[145] Ms Kelly Baker, Superintendent Recruitment, Recruitment and talent, People services, responsible for recruitment of Rio Tinto Iron Ore Group (RTIO) and Dampier Salt Ltd (DSL), stated that the Applicants would not have been suitable for operator/maintainer and electrical roles available, due to relocation costs and prioritising applications from local residents and lack of qualification in relation to Mr Stickley. Ms Baker stated it would have been unreasonable for RTIO or DSL to consider accepting the Applicant in preference to local fully qualified and experienced staff. Ms Baker also referred to “autonomous business units” being required to make decisions in the best interest of their own business unit.

[146] Ms Baker gave evidence that she believed that were significant differences between underground coal mining and open cut mining environments, which might involve significant training requirements. Mr Williams submitted that, even though Ms Baker accepted in cross-examination by Mr Walkaden that she had no reasonable basis for those views, that her acceptance of that was based on her own personal experience of training, because she had not been to some of the locations, that it was not her role and because she had never been to an underground coal mine. Mr Williams submitted 63 that she did have a reasonable basis for the views because they were her instructions from hiring leads, who had the authority to set the requirements for the role and then make the final decision on recruitment64.

[147] Ms Nicola Barwell, Recruitment Specialist - East Coast, People Services, Rio Tinto Ltd, responsible for Rio Tinto Alcan (RTA), Rio Tinto Energy (which includes RTCA) and Rio Tinto’s Group Function (Shared Support Services), gave evidence in relation to Rio Tinto Alcan.

[148] Ms Barwell stated she was not responsible for recruitment for Gove Operations as its recruitment function is run separately. She stated that Weipa Bauxite Mine (RTA Weipa) operates under three Indigenous agreements between RTA Weipa and the traditional Owners of the land. These agreements provide for employment strategies, which Ms Barwell stated include strategies to encourage and give preference to applications from local residents, and create an obligation to employ a certain percentage of the local indigenous population. Ms Barwell stated that RTA does not engage anyone on a fly in fly out basis and will not relocate employees at an entry level (such as operator/maintainers). Due to a lack of experience on open-cut mining, preference to local applicants, and necessary training, Ms Barwell stated it would have been unreasonable for RTA Weipa to have been required to consider accepting the Applicants as redeployees.

[149] Mr Williams submitted that the evidence from the shared services facilitators supported that there was no managerial integrations. Mr Baker stated that she followed the direction of the hiring leader who made all of the recruitment decisions 65.

[150] The Respondent submitted that there were cost, training and familiarity and experience issues, but that even if these were not an obstacle, as the Applicant submitted, in the interests of local community and their business, the Respondent could not be criticised for preferring local candidates 66.

[151] The Respondent referred to the case of Roy v SNC 67, in support of the submissions that it has never been accepted that it would be reasonable to redeploy any roles a great distance away, even when there might be a capacity to do so.

[152] The Respondent submitted that, even though involving the same product, the differences between open cut and underground mining are significant. Kestrel is the only underground coal mine in the RTCA Group, and Mr Williams referred to the evidence of Ms Barwell that she had never been involved in a recruitment exercise for one of Rio Tinto’s open cut coal mines where someone with previous underground experience had been hired 68.

[153] Therefore, Mr Williams submitted, it could never have been unreasonable for Kestrel to fail to redeploy outside of RTCA, firstly because it had no authority to do so, and second, because it had not been established on the evidence that there were suitable roles for any of the Applicants.

Reliability of evidence on contractor issue

[154] Mr Walkaden submitted that the embedded contractor issue was relevant as it went to the reliability of Mr Lawler’s evidence, and submitted that the use of “embedded” contractors contradicted the statement that the Respondent preferred to convert a contractor role to an employee role, if there was a need for permanent ongoing labour. Mr Walkaden submitted that the evidence of Mr Scott Cochrane 69 demonstrated that there were a number of contractors working at the mine on a regular and ongoing basis, working side by side with the permanents, featured on the organisational structure doing the same work, and working to the same roster. 

[155] Further, Mr Walkaden submitted that Mr Lawler’s evidence that the shotfirers were working for a fixed term of three months was unreliable, as Mr Scott Cochrane stated that the majority of those contractors are still there.  For example, Mr Walkaden stated that Mr Lawler didn't disclose the fact that the initial engagement was three months, but circumstances have changed and the majority of those contractors are still there. Mr Walkaden submitted that this demonstrated the unreliability of Mr Lawler’s evidence and that he was enhancing the Respondent's case.

[156] Mr Walkaden submitted that the Respondent had not met the evidentiary onus and had not been able to demonstrate the organisational structure is wrong, and that the jobs that are identified in the structure, are not still there and had not always been there.

[157] Mr Walkaden referred to the deletion of the names of employees from the structure, and submitted that it was strange that the company had not deleted those roles from the structure, because what the company have got around to is deleting the person from that structure (including the Applicant). 

[158] Mr Williams stated that there was no basis for finding that Mr Lawler’s evidence was unreliable, or that the process had been manipulated in some way adversely to the Applicants. Mr Williams stated that Mr Lawler made concessions when he needed to, and was a good witness.

Redundancy meeting and Redeployment questionnaire

[159] The Applicant submitted that the only discussion held with the Respondent, concerning redeployment, occurred after the employees were issued with notices of termination, which had immediate effect.

[160] Each witness addressed the context in which the form was given to them. It was submitted for the Applicants that the circumstances in which ‘discussion’ concerning redeployment opportunities occurred was in the context of employer representatives talking through a redundancy package of documents, and the statement of Mr Bevan Logovik in relation to the discussion was presented as indicative for the Applicants, as follows:

“23. Brad Watson started talking about a "redundancy package" that he had handed to me. He went through each component of the payments and said to me that only one element of the package would likely change and that was depending on whether I took long service leave on termination or kept it in the Long Service Leave Fund.

24. During the meeting Brad Watson spoke quickly and seemed to be talking to a pre-written sheet. I was a bit confused and upset during this process and was trying to take in everything he was saying to me, but was having difficulty.

25. At one stage during the conversation Brad Watson asked whether I would be interested in redeployment. I replied with words to the effect of:

"I don't know."

26. Brad Watson then said words to the effect of:

"Look there is a form to fill in. You can take it away with you if you like, let us know if you are interested, however I can tell you that RTCA doesn't have much in relation to operator roles."

27. That was the extent of the conversation over redeployment opportunities. Brad Watson didn't ask me any questions about my skills, nor did he point to any particular roles or projects where redeployment was an opportunity. There was no discussion about what redeployment would mean - for example, what conditions would be attached to any new role I might be able to undertake.”

[161] Witnesses were examined in relation to whether they completed the Respondent’s redeployment questionnaire that contained the following questions:

“1. You have been advised that your job is no longer required. A review of vacant positions within your BU/PG has been undertaken without success. During this review, we considered vacant roles at the same level as your current role, and similar job duties to your current role within your BU/PG. Do you want to be further considered for redeployment for roles in other functional areas and/or roles that are of a lower level than your current role?

No □ Yes □ If Yes, proceed with questionnaire

2. What type of roles would you be interest in being redeployed into should any opportunities exist?

3. Apart from your current role, what other roles have you held? Do you have any other skills that would be relevant to this process?

4. Would you consider relocating for a suitable role? If so, what locations would you consider?

5. Would you consider a lesser role (i.e. lower band?)” 70

[162] It was submitted on behalf of the Applicant that the issuing of a redeployment form as part of the termination package was “strongly suggestive” of an absence of enquiry into redeployment opportunities prior to termination. The Applicants also submitted that the evidence reflected that the Respondent discouraged any expectation of redeployment.  71

[163] It was generally submitted on behalf of the Applicants that the ‘interest in redeployment’ forms were not filled in, and that this was not surprising, given that the discussion of redeployment occurred immediately after the shock of each Applicant being told their employment was terminated.

“...the evidence of Mr Lawler was that irrespective of whether the form was completed or not, the redeployment was still looked at and considered by the company.  The non-completion of the form doesn't mean that the company didn't consider redeployment.  In any event, if there was a suitable job which the applicant should have been redeployed to, the company wouldn't be able to satisfy the commission on 389(2) by pointing to the failure of an employee to fill out a form.” 72

[164] Mr Lawler, in his first witness statement, stated that the Applicants were informed as follows in the redundancy meeting:

“84. During each meeting, the Applicants were told that:

(a) their role was no longer required in the business following the completion of the organisational restructure;

(b) as such, they had been selected for redundancy because of either their performance evaluation rating or a disciplinary matter (or in some cases both);
(c) Kestrel had already considered redeployment opportunities within the business and its associated entities in the RTCA Group, and while there were a limited number of vacant roles at that time, they did not have the right skill set or experience to be redeployed to any of the vacant roles;

(d) accordingly, their employment with Kestrel was going to be terminated and they would receive the termination entitlements set out in a schedule attached to their letter of termination (which was handed to them during the meeting); and

(e) if they wanted Kestrel to continue considering them for further redeployment opportunities that may arise during their notice period, they should complete the 'Redeployment Questionnaire' (which was handed to each Applicant during their meeting along with other relevant payroll information) and return it to the HR department.”

[165] The Respondent submitted that the Applicants were in contact after redeployment to finalise final payments, and that they did not return the redeployment questionnaire, or enquire about redeployment opportunities.

[166] The Respondent submitted that it was communicated to the Union that there were no redeployment opportunities available within Kestrel. Mr Lawler stated that on 22 September 2014, Mr Brodsky of the Union demanded information regarding redeployment opportunities and Mr Lawler informed him that he would bring a list to the meeting; Mr Lawler stated that there was no discussion of the list at the meeting 73.

[167] It was submitted that many redundant employees did put in forms but that none were able to be redeployed. It was submitted that these employees’ payment of entitlements was delayed for period of a month.

[168] Mr Williams submitted that the Applicant was not misled about the prospects of redeployment, nor were they told not to put in the form.

[169] Mr Williams stated as follows:

“....Can I refer you to the evidence of Mr Lawler at paragraphs 86 to 88 of his first statement, where he says this.  It is his evidence in relation to the questionnaire:

The purpose of the redeployment questionnaire was to allow employees selected for redundancy to express continuing interest in redeployment during the notice period, and if so, to identify the types of roles they would consider.  Although the form states that a review of vacant positions within BUPG -

I take that to mean Business Unit or perhaps Practice Group:

- has been undertaken without success, it is our practice -

That is, Kestrel’s practice:

- and was the case in respect of each applicant that Kestrel had in fact reviewed vacant roles across the RTCA group prior to making each applicant redundant.

So Mr Lawler’s evidence is about what would have happened if the redeployment questionnaire had been handed in by the applicants.  He says at 87:

If one of the applicants or another employee returned their redeployment questionnaire and had selected “yes” to be considered for redeployment, they were not required to compete with any other prospective employees for roles for which they were suitable. If the employee had the right skillset and experience for a vacant role, they would have been offered the job ahead of any other prospective employees.

88.  The only circumstance in which an employee says they may be required to compete against another employee for a redeployment opportunity would be if a number of employees had been made redundant and two or more of those employees had returned a redeployment questionnaire and were both suitable for a vacant role.  In those circumstances, Kestrel would have had to implement a selection process to select the best employee for the role.  This situation did not arise in the course of the most recent restructure process.

So, advantageously to the applicants in the retrenchment process, Kestrel fully understood and had the capacity to achieve a situation where if a role had been identified within the RTCA group, they would have been preferred for those roles if suitable.  So that’s the potentially advantageous part.  So if my client, on your findings, had not lived up to that applicant, and Mr Walkaden says it didn’t, and I’ll come to what I say about that soon, then there may be a basis for your finding that it was not a genuine redundancy.”

[170] According to Ulan No. 2, the relevant date that an employer must canvass redeployment opportunities is the date of the redundancy. At this time, Kestrel had an obligation to consider redeployment opportunities for the Applicants within Kestrel and within RTCA. There is no case authority, to suggest that, the obligation to redeploy extends after an employee has been made redundant.

[171] However, in this case, the Respondent undertook to maintain enquiries into redeployment opportunities after the Applicant was informed of his redundancy, if the Applicant returned a redeployment questionnaire indicating his interest in redeployment opportunities outside the RTCA Group.

[172] Mr Lawler gave evidence that the payment of entitlements to finalise the employment was suspended for those employees who had returned the redeployment questionnaire indicating that they sought further redeployment opportunities. However, the redundancies took effect immediately, that is, the Applicant no longer worked from the date of his notice of redundancy.

[173] If an employee is required to work out their notice period, it may be arguable that an employer has a continuing obligation to redeploy an employee during the notice period. This will involve the employer canvassing all redeployment opportunities before the employee is notified of their redundancy, and after notification (during the notice period), the ongoing obligation to identify any positions that would be suitable. There was no evidence that if a further redeployment exercise had been undertaken after the redundancy was effected that the outcome would have been altered.

[174] The Respondent submitted that all opportunities within RTCA had been canvassed prior to the Applicant’s being informed that they were being redundant, and no vacant positions suitable for the Applicants were identified at this time or later. Each Applicant was told that redeployment was unlikely.

[175] The Respondent submitted that redeployment to roles outside of RTCA was not suitable given the location and the lack of managerial integration. Redeployment opportunities inside of RTCA were exhausted.

[176] The Respondent submitted that whether the employee sought redeployment was relevant and that the Applicants, having not returned the form, effectively excluded themselves from being further considered for redeployment. However, the obligation is a proactive one on behalf of the Respondent employer and the Respondent did submit that it was identified there were no roles within RTCA before the Applicants were informed of their redundancy and the relevant date. If this is the relevant date and investigations had already been undertaken, this should have been directly communicated to the employees at the time of their redundancy. Instead, they were told it was unlikely and that there was a form to fill in.

[177] The Respondent lacked clear communication with the Applicants during the redeployment process. The results of any investigations already undertaken, which companies that involved and the companies that the Respondent would be looking into, was not clearly communicated to employees. Despite this, the evidence does not demonstrate that the Respondent failed to consider redeployment or that alternative redeployment opportunities were denied to the Applicants.

Annual leave

[178] The parties made submissions on the ability of remaining employees to take annual leave. The Applicant suggested that an inability to take annual leave was suggestive that the Respondent had reduced its workforce by too many employees, and was too aggressive in their retrenchment policy. The Respondent denied this. A variety of workforce and operational factors are relevant to the provision of annual leave and there was an absence of relevant material to determine whether this issue had a proper nexus with these redundancies.

Considerations and Conclusion

[179] Further to the aforementioned reasons, in considering the jurisdictional objection, in summary terms, firstly, with respect to s.389(1)(a) “employer no longer required the person’s job to be performed by anyone”, on the evidence and submissions, it is concluded that the work being performed on a contract basis by Mastermyne employees, does not demonstrate that the Applicant’s job was still required to be performed. According to DP Lawrence’s decision in Teterin, work being performed by contractors should not be excluded from consideration as to whether a job, position or other work is available. However, this contractor work was a short-term engagement, notwithstanding Mr Scott Cochrane’s evidence that some contractors performing that work may have been engaged for a longer period. Due to the operational changes to the Respondent’s business, the Respondent no longer required the Applicant’s job to be performed by anyone. Contractors’ employees, engaged on a contract basis, are not commensurate with the role of the Applicant.

[180] In addition, I accept that the organisational structure exhibited at SC-1 to Mr Cochrane’s statement had not been updated, and that the roles no longer exist since the restructure. It is determined that the “vacant” roles in the organisational structure was not work the Respondent required to be performed by anyone, as per s.389(1)(a).

[181] Regarding s.389(1)(b) “obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy”, it is considered that the Respondent has complied with their obligations to consult under the Agreement.

[182] With respect to s.389(2)(a) “reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise”, and whether the Applicants could have been reasonably redeployed into the Respondent’s enterprise, it is not accepted that the Respondent had an obligation to redeploy the Applicant into a “backfill position” filled by Mastermyne employees. The timing of this project, and the short-term engagement of the project are relevant considerations, as is the Respondent’s prerogative to structure their workforce on the optimum, operational and flexible basis for their business.

[183] The roles in the organisational structure were not being recruited for, and while only the Applicant’s names had been deleted from the structure, it is accepted that the jobs no longer existed, and therefore, the job, position or work were not available for redeployment to, for the Applicants.

[184] The Respondent had an obligation to consider redeployment of the Applicants to associated entities of the Respondent under s.389(2)(b), where it would have been reasonable in all the circumstances to do so.

[185] The Applicant submitted that there were three roles that existed within RTCA that the Applicant could have been redeployed to. The first step in considering redeployment is the identification of a job, position or work. The Respondent submitted that these positions did not exist at the time that the Applicant was made redundant, due to two of the positions having been offered to someone else (Hunter Valley Operations and Hail Creek roles), and the third (Mt Thorley Warkworth) having been filled between August 2014 and September/October 2014.

[186] On the evidence, it has not been demonstrated that these three positions were available for the Applicant to be redeployed to at the time of their redundancy. Further, it is clear that the Respondent canvassed opportunities for redeployment at Kestrel and within RTCA prior to the Applicant being made redundant. I am satisfied that there were no available positions for the Applicant to be redeployed to the related entities within RTCA. It was not reasonable for the Applicant to be redeployed within RTCA as it was demonstrated that there were no positions that the Applicant could have reasonably been redeployed into.

[187] The Applicant submitted that it was reasonable for the Respondent to redeploy the Applicant into an associated entity of Rio Tinto Ltd other than RTCA. The Full Bench in Ulan No. 2 qualified that redeployment considerations extended to associated entities which are all subject to overall managerial control by one member of the group 74. The Full Bench held that whether redeployment to an associated entity is reasonable will depend on the circumstances and managerial integration is likely to be a relevant consideration75. There was no evidence that the Respondent was subject to overall managerial control by Rio Tinto Ltd. The Respondent conceded that there was some managerial integration with regard to recruitment within RTCA, and the evidence indicated that redeployment within RTCA operations was canvassed, but not available.

[188] Whilst there was evidence, from the head of the recruitment function, that there existed shared support services between entities, the evidence was that recruitment decisions were made by the separate entities themselves. Ms Baker gave evidence that the hiring leads in each company made the final recruitment decisions. It was submitted that the Respondent had no power to influence recruitment decisions of other entities, which reflected the lack of control and managerial integration between the businesses. Mr Williams submitted that the Applicant had to establish that “Kestrel, the employer with the obligation, had the managerial authority to insist that the applicants be redeployed into those roles”. There simply has to be overall managerial control by one member of the group and the level of managerial integration between the entities will be relevant.

[189] The Respondent and each associated entity are at liberty to adopt business structures which are in the best interest of their business operations. The evidence is that many of Rio Tinto Ltd’s subsidiaries or associated entities have structured their companies as autonomous business units. The Respondent was not subject to overall managerial control from one member of the group of associated entities. There was a lack of managerial integration between Kestrel or RTCA and non-RTCA entities. In these circumstances, it was not reasonable for the Applicant in all the circumstances to be redeployed within the enterprise of an associated entity of Kestrel, outside of RTCA.

[190] Whether there was a position, job or work identified in a non-RTCA associated entity and whether that position was reasonable (involving a possible consideration of location, skills and training, and experience) or not, is not required. Non-RTCA entities do not meet the tests in Ulan No. 2 for associated entities, as the Respondent was not subject to overall managerial control from one member of the group outside RTCA, and there exists a lack of managerial integration between non-RTCA associated entities.

[191] The Respondent has established that the dismissal was a case of genuine redundancy; that the job the Applicant performed was no longer required to be performed, and that appropriate consultation was undertaken in relation to the redundancy. The Respondent had no obligation to redeploy the Applicants to positions performed by contractors. I accept that in the organisation structure, the “vacant” roles were not in existence. There were no roles for the Applicant to be redeployed to within RTCA. Further, no appropriate alternative and non-RTCA jobs were identified, and redeployment to non-RTCA entities was not required by the Respondent as they were not subject to the same overall managerial control, and lacked managerial integration.

[192] On the basis of the facts of the matter, as per the evidence and submissions, the Applicant’s dismissal was a case of genuine redundancy in accordance with s.389(1)(a), s.389(1)(b) and s.389(2) of the Act. The jurisdictional objection, that is, that the termination of employment was a genuine redundancy, is upheld and therefore, the Applicant was not unfairly dismissed. Having considered the jurisdictional objection, it is not necessary to consider the merits of the unfair dismissal application.

[193] For the aforementioned reasons, the Applicant’s application, filed pursuant to s.394 of the Act, is dismissed in accordance with s.389 of the Act.

[194] I Order accordingly.

COMMISSIONER

Appearances:

Mr A Walkaden of CFMEU for the Applicants.

Mr D Williams of Minter Ellison for the Respondent.

Hearing details:

2015.

Brisbane.

March 2, 3.

 1   Crema and Others v Abigroup Contractors[2012] FWA 5322, Commissioner Cribb, at [81].

 2   Henry Jon Howarth; Anthony Honeysett; Aaron Oldfield; Christopher Michaelides; Graham Atkinson; Ray Murray; Craig Butler; Rodney Butler; Mark Butler; Daniel Dixon v Ulan Coal Mines Limited[2010] FWA 167 at [15] - [20]

 3   Witness statement of Mr Scott Cochrane dated 25 February 2015

 4   PN1450 - PN1467

 5   PN2069

 6   PN 2098

 7   PN2104

 8   Henry Jon Howarth; Anthony Honeysett; Aaron Oldfield; Christopher Michaelides; Graham Atkinson; Ray Murray; Craig Butler; Rodney Butler; Mark Butler; Daniel Dixon v Ulan Coal Mines Limited[2010] FWA 167 at [15] - [20]

 9   Teterin and others v Resource Pacific Limited T/A Ravensworth Underground Mine[2014] FWC 1578

 10   Annexure SC1 to the Affidavit of Scott Cochrane dated 25 February 2015

 11   At [20]

 12   [2010] FWAFB 3488

 13   PN2132 - PN2133

 14   [2010] FWAFB 3488 at [31].

 15   PN39

 16   PN2095 -PN2096

 17   Clause 14 - Introduction of Change

 18   [2010] FWAFB 7578.

 19 Ibid at [28].

 20   Ibid at [34] - [35].

 21   PN2180

 22   [2014] FWCFB 714

 23   Pykett at [18]

 24   Pykett at [37]

 25   PN2200

 26   PN2202

 27   [2014] FWCFB 714 at 24

 28   At [28]

 29   [2014] FWC 2264

 30   Ventyx Pty Ltd v Murray [2014] FWCFB 2143.

 31   Ventyx at [160]

 32   Bruce Teterin, Ronald Leggett, Danny Garaty, Steven O'Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony Anderson, Jason James, Michael Roe, Paul Watkins, Peter Lye v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125

 33   At [30]

 34   Pykett involved a discussion of the ordinary meaning of ‘redeployed’; also Maritime Union of Australia and Fremantle Port Authority, Print K9286, per Commissioner Sweeney

 35   [2014] FWC 7376

 36   [2013] FWC 7309

 37   Ventyx Pty Ltd v Murray [2014] FWCFB 2143 at [159]

 38   [2010] FWAFB 7578 at [28] and [30]

 39   [2014] FWC 7376 at [32]

 40   [2010] FWAFB 7578 at [28] and [30]

 41   Exhibit 17 - Spreadsheet attached to email dated 3 October 2014 and Exhibit 18 - Green Report

 42   PN1755

 43   PN304

 44   PN318 - PN327

 45   Second Witness statement of Tony McDonell dated 27 February 2015 at [7]; Second Witness statement of Daniel Stickley at [6]

 46   Second Witness statement of Beven Logovik dated 27 Febraury 2015 at [6]

 47   PN1820

 48   PN1053 - PN1099

 49   PN1896

 50   PN2287

 51   Exhibit 19

 52   PN2430

 53   Which the Respondent submitted was the relevant date according to Ulan No. 2

 54   PN1758 - PN1764

 55   PN1850

 56   PN1854

 57   At [35]

 58   First witness statement of Jonathan Lawler dated 17 December 2014 at [71]

 59   First witness statement of Jonathan Lawler dated 17 December 2014 at [71]

 60   Witness statement of Evan Duxbury at [30]

 61   Witness statement of Jasmyn Scott at [12]

 62   Witness statement of Jasmyn Scott at [14]

 63   PN2425

 64   PN1997 - PN2003

 65   PN1936

 66   PN2410

 67   Roy v SNC at [40] and [43]

 68   PN1823

 69   At [14] to [17]

 70   Redeployment Questionnaire, Exhibit 4

 71   Witness statement of Daniel Stickley at [27]-[29]; witness statement of Les Cochrane at [32]

 72   PN2236

 73   PN757

 74   At [35]

 75   At [28]

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