Mr Michael Zealley v Aware Super Pty Ltd

[2021] FWC 6450

[2021] FWC 6450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mr Michael Zealley
v
Aware Super Pty Ltd
(C2021/3189)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 NOVEMBER 2021

Alleged dispute about a matter arising under an enterprise agreement – claim made for a redundancy package – interpretation of enterprise agreement – determination that no entitlement arises.

[1] On 5 June 2021, Mr Michael Zealley filed an application under s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute. Mr Zealley has raised a dispute with Aware Super Pty Ltd (Aware Super) pursuant to clause 39 of the VicSuper Enterprise Agreement 2017 1(the Agreement).

[2] The dispute was the subject of a conference before me on 30 June 2021, however, the matter did not resolve. Thereafter the parties further considered their positions and were ultimately required to agree upon the question to be arbitrated. The parties reached agreement for me to determine the following question:

•  Is Mr Zealley entitled to a redundancy package pursuant to Clause 34.5 of the VicSuper Enterprise Agreement 2017?

[3] I then issued directions for the filing and service of material and conducted a hearing on 22 October 2021 via Microsoft Teams.

Background

[4] Mr Zealley commenced employment with VicSuper Pty Ltd (VicSuper) on 6 March 2006 as a Trainee Adviser. Over time he advanced to the position of Senior Financial Planner and he remained in this role until 30 June 2020. In 2019, VicSuper and First State Super Pty Ltd entered into formal discussions to merge and signed a merger deed creating the entity Aware Super on 12 December 2019 (Merger).

[5] As a result of the Merger, VicSuper and First State Super Pty Ltd undertook an organisational restructure to merge their assets, employees and processes. It is proffered that VicSuper undertook extensive consultation both before and after the Merger was announced. The parties have differing views regarding the quality of the consultation process. Aware Super says the purpose of the pre-announcement consultation process, which commenced in May 2019, was to keep employees informed and updated on how discussions were progressing and what (if any) effect any changes would have on their employment. It further says that post-announcement in December 2019, there was a further consultation process, the purpose of which was as follows:

•  to discuss any changes in positions or negative impacts that might occur as a result of the Merger;

•  to provide an opportunity for employees to express their concerns, put forward alternatives or other ideas to mitigate adverse effects of the Merger; and

•  to ensure that any position in the new structure that was mapped to an employee was an equivalent position.

[6] As part of the new organisational structure, Aware Super made a decision to adopt First State’s model of providing intra-fund advice. The drivers of this decision were said to be twofold. Firstly, the Merger had significantly increased the size of the membership to be serviced. Secondly, there was greater Federal Government focus driving a changed regulatory environment following the Banking Royal Commission’s findings into the provision of financial advice, which included ASIC adopting a narrower definition of what a superannuation fund could consider as being intra-fund advice. Once the VicSuper and First State funds were integrated, Aware Super adopted both what were said to be stricter measures to determine what constituted personal superannuation advice and a primarily telephone-based mode of providing superannuation advice. Aware Super acknowledged Mr Zealley and other members of the intra-fund advice team voiced concerns and that these included the mode of the provision of advice and the topics and scope of advice that advisors could give in the new structure. The consultation periods were extended in order to accommodate further discussions regarding concerns of the intra-fund advice team. They continued until the end of June 2020.

[7] Mr Zealley regards the consultation regards less favourably, describing it as ineffective and a sham, with questions left unanswered and responses provided that were vague and lacking in detail.

[8] By letter from VicSuper dated 1 July 2020 with the title “Confirmation of ongoing role”, Mr Zealley was advised he had an ongoing role of Superannuation Advisor – Transitional Pathway effective 1 July 2020 and reporting to the Manager – Blackburn Advice Centre in the Advice team. The letter also outlined that all other terms and conditions of Mr Zealley’s employment remained unchanged. Mr Zealley was invited to sign, so as to acknowledge that he had read the letter and understood its contents. Mr Zealley signed the letter on 1 July 2020.

[9] Mr Zealley says that having been in the new role, he has seen very few signs of structures or plans in place to aid him in transitioning to a Financial Planner role. He says the new role is significantly different to his role as a Senior Financial Planner and this has caused him stress and anxiety. Mr Zealley says that on 15 April 2021, he met with Ms Alana Newman, Human Resources Business Partner, and Mr Ben Willard, his direct manager, and requested a redundancy package. Ms Newman and Mr Willard disputed Mr Zealley’s claim that his position was made redundant and asserted the Superannuation Advisor position was an equivalent position to that of Senior Financial Planner with VicSuper. On 3 June 2021, Mr Zealley provided a medical certificate stating he was unfit for work until 28 June 2021 and on 5 June 2021, Mr Zealley filed this application with the Commission. Since then, there has been correspondence between the parties regarding Mr Zealley’s fitness for work and a potential return to work program but as at the date of the hearing, Mr Zealley had not returned to work.

[10] Mr Zealley argues that the question for determination is to be answered with a “yes”. Mr Zealley submits he has been redeployed into the Superannuation (Intrafund) Adviser role, that this was not reasonable and that it is not an “equivalent” position. He claims he therefore should have been terminated with a redundancy package calculated in accordance with clause 34.5 of the Agreement.

[11] The primary position of Aware Super is that it has at no stage been the case that Mr Zealley’s previous position of Senior Financial Planner is no longer required to be performed by anyone and he was never notified by Aware Super that his position was no longer required. Aware Super submits that while Mr Zealley was informed that his role would be renamed from Senior Financial Planner to Superannuation Advisor, the change of position title did not result in a reduction in status. Further, Mr Zealley’s terms and conditions of employment under the Agreement remained the same and his direct reporting line remained the same, albeit his manager is a different person. Aware Super submits its Superannuation Advisor position is performing the same function as the previous VicSuper Senior Financial Planner position and that the role has continued post-Merger. Aware Super submits that a redundancy within the meaning clause 34.2 of the Agreement has not arisen and therefore Mr Zealley is not entitled to a redundancy package pursuant to clause 34.5 of the Agreement.

[12] The secondary position of Aware Super is that if the Commission finds that Mr Zealley’s Senior Financial Planner position with VicSuper was no longer required to be performed by anyone, Mr Zealley was offered reasonable redeployment into an available equivalent position, which he accepted and on this basis, no entitlement to a redundancy payment entitlement was triggered.

Consideration

[13] The principles that apply to the interpretation of an enterprise agreement have been outlined by the Full Bench of the Commission in AMWU v Berri Pty Ltd 2 (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.3 The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.4

[14] Further, the correct approach was succinctly put by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 5as follows:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted)

[15] Berri further provides that the first task in construing an enterprise agreement is to determine whether an agreement has a plain meaning or is ambiguous or susceptible of more than one meaning. 6

[16] Clause 2 of the Agreement sets out various definitions, including:

“Redeployment means where VicSuper offer you a suitable position because your current position has been declared redundant;

Redundancy means when VicSuper no longer requires a particular position to be performed by anyone;

Retrenchment means when your employment with VicSuper is terminated as a result of redundancy and where redeployment is not possible; ...”

[17] Clause 34 of the Agreement deals with redundancy, redeployment and retrenchment as follows:

“34 Redundancy, Redeployment and Retrenchment

34.1 If you are fixed term or casual, this clause does not apply to you.

34.2 A redundancy arises where VicSuper no longer requires a position to be performed by anyone. It may result from changes such as the reorganisation of work, the adoption of new business practices, the introduction of new technologies, or other operational changes within the business.

34.3 Where VicSuper makes a definite decision (following consultation with you, in accordance with clause 36) that it no longer requires a position to be performed by anyone, this may result in excess employees.

34.4 If your position is no longer required, VicSuper will make all reasonable efforts to redeploy you into an available equivalent position. For the avoidance of doubt:

(a) If you accept the offer of redeployment, your salary package may be adjusted or your annual salary package increase suspended to ensure relativity with the market median;

(b) If you choose not to accept the offer of redeployment, you will have no entitlement under clause 34.5.

34.5 If your position is no longer required and VicSuper are unable to redeploy you into an equivalent position, you will be entitled to the following redundancy package calculated at your base salary (plus SGC where allowed by law):

Payment	Amount	Conditions
Payment 1	8 weeks’ payment in lieu of notice of termination (or 9 weeks’ notice if you are over 45 years of age)	You must have successfully passed probation and have completed six months service
Payment 2	2 weeks’ payment for each completed year of service plus the pro-rata equivalent for each month of completed service in your last year	Capped at 32 weeks
Payment 3	Pro rata long service leave entitlements	You must have completed more than 3 years continuous service
Payment 4	Accrued annual leave including annual leave loading	None

34.6 VicSuper recognises the impact that redundancy, redeployment, and retrenchment have on you and as such, are committed to facilitating this process with dignity and respect. During this process, you and your family will have access to VicSuper’s nominated Employee Assistance and Outplacement Programs.”

[18] There are no other material references to ‘redundancy’, ‘redeployment’ or ‘retrenchment’ in the Agreement.

[19] I do not accept the primary position of Aware Super that is in essence a denial that Mr Zealley’s previous position of Senior Financial Planner is no longer required to be performed by anyone. I am satisfied the evidence and material establishes that although VicSuper contends Mr Zealley had an ongoing role from 1 July 2020, it in fact no longer required the position of Senior Financial Planner to be performed by him or anyone after the Merger. I consider a redundancy scenario as defined in clause 2 of the Agreement, and within the meaning of clause 34.2, arose. I am also satisfied however, based on the evidence of Mr Zealley and Ms Saunders, that there was consultation of a nature contemplated by clause 36 of the Agreement (clause 34.3).

[20] The parties directed significant focus upon establishing whether or not the position of Superannuation Advisor – Transitional Pathway was an “available equivalent position” within the meaning of clause 34.4 of the Agreement. This exercise proceeded in somewhat of a vacuum because Mr Zealley’s evidence was that he nonetheless proceeded to work in this new role until he began taking leave from March 2021. Further, he remains so employed. I am satisfied Mr Zealley accepted the redeployment offered to him, even if his evidence was variously:

a) He did not volunteer to take the Superannuation Advisor – Transitional Pathway role,but nevertheless accepted the offer of redeployment made by Aware Super to see how it went and “went ahead with it” by proceeding to perform the role; 7

b) He “gave it a go in the new role”, despite having reservations at the time; 8

c) He was not totally happy to be doing the new role; 9 and

d) There was potentially an incentive to remain in the role, or “to suck it up and see for a period of time”, on the basis that he was transitioning, and it was only going to be a temporary position. 10 

[21] Now, despite having accepted and performed the role of Superannuation Advisor – Transitional Pathway, Mr Zealley seeks to argue he has not been redeployed into an equivalent position. However, the entitlement to a redundancy package in clause 34.5 of the Agreement must be read in context, not isolation.

[22] On and from 1 July 2020, Mr Zealley elected to take up the option of accepting the offer of redeployment into the role of of Superannuation Advisor – Transitional Pathway (Clause 34.4(a)) and by doing so, he accepted VicSuper was able to redeploy him into an equivalent position. In these circumstances, clause 34.4(b) of the Agreement becomes moot. Mr Zealley could have elected not to accept the offer of redeployment on 1 July 2020, instead arguing that VicSuper was unable to redeploy him into an equivalent position (clause 34.5). However, he elected not to do this and having elected not to do so then, Mr Zealley cannot do so now. This is because clause 34 of the Agreement (and in particular, clause 34.5) is expressed in the present tense and Mr Zealley’s current position of Superannuation Advisor – Transitional Pathway is a required one. No question of redeployment arises at present and nor is there a need for redeployment.

Conclusion

[23] As Berri makes clear, the task of interpreting an agreement does not involve rewriting its terms to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by the parties. The parties to this dispute reached agreement that the question to be arbitrated by the Commission is:

“Is Mr Zealley entitled to a redundancy package pursuant to Clause 34.5 of the VicSuper Enterprise Agreement 2017?”

[24] On the facts of this case, I have been persuaded and conclude that the answer to the agreed question is “No”.

DEPUTY PRESIDENT

Appearances:

Mr M Zealley on his own behalf.
Mr M Bartlett on behalf of Aware Super Pty Ltd.

Hearing details:

2021.
Melbourne (via video on Microsoft Teams):
October 22.

Printed by authority of the Commonwealth Government Printer

<PR736136>

 1   AE500942.

 2   [2017] FWCFB 3005.

 3   [2014] FWCFB 7447.

 4   [2017] FWCFB 3005 at point 1 in [114].

 5 [2018] FCAFC 131, 264 FCR 536.

 6 Ibid at point 7 in [114].

 7   Transcript PN 209-210.

 8   Transcript PN 63.

 9   Transcript PN 194.

 10   Transcript PN 196.