Mr Raymond Jones v Trustee for the Secure Kings Unit Trust t/a Secure Parking Pty Ltd

[2021] FWC 1616

[2021] FWC 1616

FAIR WORK COMMISSION

DECISION

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

Mr Raymond Jones
v
Trustee for the Secure Kings Unit Trust t/a Secure Parking Pty Ltd
(U2020/11224)

COMMISSIONER HUNT BRISBANE, 24 MARCH 2021

Application for an unfair dismissal remedy – whether termination a case of genuine redundancy – respondent’s enterprise substantially affected by COVID-19 – limbs of s.389 met – jurisdictional objection upheld – application dismissed.

[1] On 18 August 2020, Mr Raymond Jones made an application for unfair dismissal remedy under s.394 of the Fair Work Act2009 (the Act) to the Fair Work Commission (the Commission) alleging he had been unfairly dismissed by his employer, Secure Parking Pty Ltd (Secure Parking/the Respondent).

[2] Secure Parking raised a jurisdictional objection to Mr Jones’ application, that the termination of his employment was a case of genuine redundancy as defined in s.389 of the Act.

Background

[3] On 12 November 2019, Mr Jones commenced employment with Secure Parking as a permanent part-time Kerbside Officer. Mr Jones’ employment with Secure Parking was covered by the Car Parking Award 2020 (the Award).

[4] Secure Parking offers a range of parking facilities in all major Australian cities including Sydney, Brisbane, Melbourne, Perth and Adelaide as well as New Zealand. Secure Parking has provided services at Brisbane Airport to the Brisbane Airport Corporation Pty Limited (BAC) since 2012. BAC has management and operation control of Brisbane Airport.

[5] In around October 2019, Secure Parking was informed that it had successfully secured the agreement for services, being the “Landside Services Agreement” for BAC. The Landside Services Agreement governed the continued provision of services by Secure Parking, such as valet and car parking services at Brisbane Airport, as well the additional provision of Kerbside Services that had been successfully won through a tender process.

[6] Pursuant to the Landside Services Agreement, Kerbside Services were to be performed 24 hours per day, seven days per week. During his employment, Mr Jones reported to Mr Daniel Fossey, Landside Services Manager.

[7] From around early March 2020, there has been a significant reduction in operations at Brisbane Airport as a result of the COVID-19 pandemic and government associated travel restrictions.

[8] On 26 March 2020, Mr Jones was notified of the stand down from his employment without pay, effective 31 March 2020. Mr Jones later became eligible to receive JobKeeper payments. He was not required by the Respondent to attend for work until June 2020.

[9] The Respondent determined that its Brisbane Airport operations were significantly overstaffed for the estimated operational requirements of BAC into the foreseeable future and therefore a reduction in staffing would be necessitated.

[10] On 21 July 2020, Mr Jones was provided with a termination letter by email, setting out that his employment would be made redundant and confirming his last day of employment would be 3 August 2020. A copy of the termination letter is produced below:

“20th July 2020

Strictly Private and Confidential

Raymond JONES

Dear Raymond

Further to our meeting on the 13th of July 2020, I regretfully advise that your position with Secure Parking will cease to exist with effect from the 3rd of August 2020 and therefore your employment will be terminated on that day.

As you are aware COVID-19 has had a dramatic negative impact on Secure and the Aviation Industry. The course of action the company has taken is due to a review and reorganisation of Secure Parking’s Brisbane Airport Team which has resulted in your position having to be made redundant. We are aware of the impact of this decision upon you and we have prepared a redundancy payment for you. Please see the attached redundancy payment calculation detailing your entitlements. In summary these are made up of:

•  A notice period (payment will be made in lieu of notice)

•  A termination payment in the form of a redundancy payment

•  Payment for all accrued annual leave entitlements

I would like to take this opportunity to thank you for your service with Secure Parking and wish you the very best for the future.

Yours Sincerely,

Michael Tabone
Brisbane Airport General Manager”

Hearing of the application

[11] I listed the matter for a telephone hearing on 23 November 2020. Mr Jones appeared on his own behalf, giving evidence in support of his application. Ms Vanja Bulut of Counsel was granted leave pursuant to s.596(2)(a) of the Act to appear for the Respondent, instructed by Ms Lily Schafer-Gardiner and Ms Alexandra Abbott of HWL Ebsworth Lawyers. Ms Darlene Winston, Head of People and Culture, Secure Parking was also in attendance. Mr Daniel Fossey, General Manager appeared and gave evidence for Secure Parking.

Legislation

[12] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.”

[13] Section 396 of the Act sets out the following:

“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.”

[14] As set out above in s.396 of the Act, a consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was a case of genuine redundancy. If the Commission determines that the dismissal was a case of genuine redundancy, the application will be dismissed.

[15] Section 389 of the Act provides the meaning of genuine redundancy as follows:

“(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.”

[16] This decision determines the jurisdictional issue as to whether the dismissal was a case of genuine redundancy pursuant to s.389 of the Act.

Respondent’s evidence

Evidence of Mr Daniel Fossey

[17] Mr Fossey made a witness statement and appeared and gave evidence at the hearing. At the time of making the statement he was the General Manager of Secure Parking for the Gold Coast University Hospital and Gold Coast Private Hospital sites. Between January 2019 and January 2020, he held the position of General Manager at the Brisbane Airport site. At the time of the hearing he was employed as a Workforce Manager.

[18] Mr Fossey stated Secure Parking has provided services at Brisbane Airport to BAC since 2012. BAC maintains management and operation control of Brisbane Airport. Historically the provision of services by Secure Parking at Brisbane Airport was a fixed labour element. There was a fixed number of positions and hours per week associated with each position, and BAC would pay a fixed fee associated with this labour on the basis that Secure Parking provided the number of positions identified and or the hours per week required. The fixed labour element was historically for the Control Room and for the Valet services at the Domestic Terminal, International Terminal and Virgin Valet.

[19] In around October 2019, Secure Parking was informed that it had successfully secured the agreement for services (Landside Services Agreement). The Landside Services Agreement governed the continued provision of services by Secure Parking, such as valet and car parking services at Brisbane Airport. The Landside Services Agreement also provided for the additional provision of Kerbside Services that had been successfully won through a tender process. Kerbside Services had previously been provided to BAC by the Respondent’s competitor, Wilson Parking Australia (Wilson).

[20] Mr Fossey explained as part of the Landside Services Agreement, BAC required a General Manager at Secure Parking with more extensive experience in business development. As a result, Mr Michael Tabone commenced employment with Secure Parking in the position of General Manager, Brisbane Airport, known as the Landside Services Manager. It was at this time that Mr Fossey stepped into the Landside Services Assistant Manager position.

[21] Mr Adam Hazell, Landside Operations Manager at BAC, was the direct reporting line at BAC. Mr Tabone and Mr Fossey were in regular contact with Mr Hazell regarding the services provided by Secure Parking under the Landside Services Agreement and any matters that arose from this.

[22] Mr Fossey stated Secure Parking is defined as the Service Provider under the Landside Services Agreement. Services are defined at section 1.1 of the Landside Services Agreement to refer to the provision of Landside Services and Kerbside Services as well as any activities necessary or incidental to the Services.

[23] Resources and Personnel are addressed at section 21 of the Landside Services Agreement, as follows:

“21.1 Staff

The Service Provider must ensure that:

(a) only Personnel with the relevant experience, skills, qualifications, licences and other approvals necessary to perform the Services in accordance with this Agreement and all Legislative Requirements are engaged in the performance of the Services; ...”

[24] Section 21.2 of the Landside Services Agreement also sets out Secure Parking's obligations in relation to Key Personnel and section 21.3 details the circumstances under which approval for the engagement of Key Personnel is required from BAC. Section 21.4 of the Landside Services Agreement sets out the circumstances under which BAC may direct Secure Parking to remove any person engaged in connection with the Services.

[25] From around 12 November 2019, in accordance with the Landside Services Agreement, Secure Parking commenced providing Kerbside Services at Brisbane Airport. At the time of entering into the Landside Services Agreement, Secure Parking acknowledged that Brisbane Airport provided an essential service to the travelling public 24 hours per day, seven days per week, and as such, it was critical to the operation of the Brisbane Airport that Kerbside Services were performed. Further, it was a contractual requirement.

[26] Mr Fossey stated the Kerbside Services included:

(a) carrying out the Kerbside Services at the International and Domestic Terminal Buildings;

(b) taxi rank management;

(c) providing Daily, Monthly, Quarterly and Yearly operational reports;

(d) issuing infringement notices pursuant to the Australian Road Rules and DIRD PINS Agreement; and

(e) ensuring that all Legislative Requirements that apply to the Kerbside Services are fully complied with.

[27] In preparing his evidence, Mr Fossey says that he specifically reviewed the Kerbside Operations Fixed Labour Fee under the Landside Services Agreement. Table 6A.2 of the Schedule to the Landside Services Agreement sets out the Fixed Labour Fee for Kerbside Operations. This includes reference to services provided at specific locations within the Brisbane Airport and the number of hours of coverage required per week. Mr Fossey’s evidence is that the majority of the positions listed were filled by Secure Parking employees employed as Kerbside Officers or Customer Service Officers. Where the table requires the provision of a Kerbside Supervisor/Team Leader for 168 hours per week, several Secure Parking employees would cover the requirement on a roster basis. Initially employees were rostered on a four on, four off pattern.

[28] Mr Fossey stated generally, Secure Parking had discretion in relation to staffing Kerbside Operations within the scope of the Landside Services Agreement and the fixed labour fee. Initially BAC was involved in consulting with Secure Parking and provided a list of names who were considered suitable for supervisory roles. Those were individuals previously employed by Wilson whose skill sets were known.

[29] When the change of service provider occurred from Wilson to Secure Parking, a decision was made by Secure Parking to interview and hire a select group of employees previously employed by Wilson in kerbside services. Secure Parking sought to utilise the experience of some former Wilson employees who had existing experience in kerbside operations. It is Mr Fossey’s understanding those employees were paid out any accrued entitlements by Wilson.

[30] The group of former employees of Wilson who were successful in gaining employment with Secure Parking in kerbside services in around November 2019, ceased their employment with Wilson and commenced new employment with Secure Parking.

[31] Mr Fossey stated on around 12 November 2019, Mr Jones commenced employment with Secure Parking as a permanent part-time Kerbside Officer. Mr Fossey is aware Mr Jones was previously employed by Wilson and had been working in the Brisbane Airport as a Kerbside Officer for Wilson for a number of years prior to the commencement of his employment with Secure Parking.

[32] Mr Jones’ employment with Secure Parking was governed by a contract of employment dated 23 October 2019 and signed by Mr Jones on 24 October 2019. Mr Fossey set out evidence about the specific terms of Mr Jones’ role and working arrangements, including shift patterns. 1 Secure Parking employs Kerbside Officers, Supervisors and a Management Team in Kerbside Services. Mr Jones did not perform any Supervisor or Management Team shifts.

[33] In January 2020, Secure Parking was notified by BAC that the Kerbside Services rostering was exceeding the budget and that the spend on labour was too high. This was due to a number of factors including the adoption of rostering patterns that incorporated nine-hour shifts attracting a considerable overtime spend.

[34] In January 2020, following a course of consultation with the Kerbside Operations team lead by Mr Patrick Askin, Operations Manager and Mr Fossey, an amended rostering system was developed. A seven-day consultation period was implemented, and a number of conversations were had face-to-face with affected workers. At around this time the location acronyms and position titles were changed slightly. For example, Kerbside Management Officers were changed to Customer Service Officers.

Impact of COVID-19

[35] Mr Fossey gave evidence that from around early March 2020, there has been a significant reduction in operations at Brisbane Airport as a result of the COVID-19 pandemic and government associated travel restrictions. With the implementation of travel bans by the Australian government, there was effectively no air-based travel occurring at Brisbane Airport. With reduced operations and passenger numbers, the requirement for valet services and kerbside services was significantly reduced. From around this time, a phasing down of operations at Brisbane Airport occurred.

[36] Mr Fossey stated from around mid-March 2020, BAC consulted with Secure Parking in relation to reducing staffing hours, reducing contract costs (in line with reduced hours), reductions in management and administration costs and costs associated with staffing changes and services changes.

[37] The valet services provided by Secure Parking were the first area to be significantly impacted. With reduced domestic and international travel, there was no demand for valet services by customers at Brisbane Airport. Kerbside Services were the next significantly affected area. Conversations between BAC and Secure Parking involved BAC representatives Mr Paul Laws (Head of Consumer Projects & Operations) and Mr Hazell. Mr Fossey spoke most often and directly with Mr Hazell. Mr Damien Conoulty, General Manager - QLD at Secure Parking and Mr Tabone led the high-level discussions from Secure Parking’s perspective.

[38] On 19 March 2020, Mr Conoulty forwarded Mr Fossey an email from Mr Laws attaching a PowerPoint presentation and summarising actions to be taken by Secure Parking and BAC. The 19 March 2020 email also advised of International Terminal Building Valet shutdown and Airpark Shutdown. The PowerPoint presentation that was delivered by BAC set out Landside Services and BAC’s request to reduce specific services. The BAC presentation specifically dealt with the necessary reduction in Kerbside Services and contained a requirement to either remove Kerbside Officers from specific positions or reduce hours associated with the position.

[39] The BAC presentation demonstrated:

(a) a significant reduction in services was required in the Domestic Terminal with four locations removed and two reduced in terms of hours. The remaining positions in the domestic terminal were Kerbside Supervisor, Team Leader (Road 5) and Taxi Rank Officer. Reduced services would also continue in the Taxi Feeder (ISA) and Road 3&4 Officer locations; and

(b) the removal of most Kerbside Officer roles in the International Terminal. The only remaining positions in the International Terminal were the Team Leader (Level 2&4) at reduced hours and the Central Parking Officer.

[40] Mr Fossey stated the BAC presentation demonstrated the reduced services required by BAC. It was up to Secure Parking to determine how many employees would continue to be rostered on.

[41] Following on from the BAC presentation, Mr Fossey was involved in developing revised rosters for Secure Parking staff. These rosters were amended and revised a number of times during the consultation process. At that time, Mr Tabone and Mr Fossey were trying to understand the potential ongoing effects of the COVID-19 pandemic on Brisbane Airport and its operations, and as a result, it did not immediately start considering terminations and redundancies of employees.

[42] Where employees could not be usefully employed due to stoppages in work outside of Secure Parking’s control, Secure Parking considered standing down those employees without pay for an interim period. The majority of the positions that remained at that time were Supervisor or Team Leader positions.

[43] Within Kerbside Operations there was a significant reduction in shifts for Kerbside Officers who could not perform Supervisor or Team Leader shifts. In preparing the 23 March 2020 revised roster, Mr Fossey attempted to keep some consistency throughout the entire operation for shift patterns and operation. Mr Fossey’s evidence is that the only positions available for Kerbside Officers/Customer Service Officers who were not team leaders were the Central Parking Officer (CPO), the Taxi Rank Officer, Taxi Feeder (ISA) and the Road 3&4 Officer. The majority of those positions were based in the Domestic Terminal.

[44] Mr Fossey’s evidence is that Mr Jones was one of many Kerbside Officers who was considered for inclusion on the roster. Mr Jones had previously been rostered in the International Terminal for the majority of his shifts. Secure Parking prioritised staff members who ordinarily performed shifts in the Domestic Terminal for remaining Kerbside Officer shifts in the Domestic Terminal. As a result, Mr Jones was not prioritised for remaining Kerbside Officers shifts in the Domestic Terminal and he was not considered to be an employee with a skill set and experience suited to the CPO position. Mr Fossey understands that Mr Jones also expressed to Mr Askin that he did not like to work in the CPO position.

[45] On 26 March 2020, Mr Jones was notified of the stand down from his employment without pay, effective 31 March 2020. Mr Jones was among a significant group of employees who were stood down from their employment at Brisbane Airport.

[46] Mr Fossey stated that while managing the process of standing down a number of employees (including Mr Jones), Secure Parking continued to consult with BAC in relation to the reduced services required. BAC made specific requests for certain employees including Mr Brenden Hubert, Mr John David, Mr Patrick Askin and Mr Mark Fotek to continue on in Supervisor positions.

[47] Mr Fossey’s evidence detailed the changes in services during April 2020. 2

[48] In around late May 2020, Secure Parking received notice that it would become eligible for the JobKeeper subsidy. From 8 June 2020, Mr Jones, along with all other eligible employees of Secure Parking commenced receiving JobKeeper payments.

[49] On 15 June 2020, Secure Parking issued a letter to Mr Jones confirming that he would receive JobKeeper payments and that he would be contacted in relation to a return to work date and rostering arrangements. Once JobKeeper payments commenced in June 2020, Secure Parking determined to bring as many employees at Brisbane Airport back as possible on a limited rotating roster, whereby they would work about 16 hours per week, equivalent to roughly two days.

[50] Mr Fossey’s evidence is that Secure Parking brought back a combination of permanent full-time, part-time and casual employees. The predominant reason for Secure Parking’s decision to return employees back to work at this time was to allow them to stay in touch with their colleagues and Secure Parking while remaining engaged in the business.

[51] Mr Jones was brought to work on around 26 June 2020 on a limited rotating roster and performed duties of this nature, largely based at the International Terminal Building, as this was Mr Jones’ stated preference.

Redundancies

[52] Mr Fossey stated in around early July 2020, Secure Parking, in consultation with BAC, continued its ongoing review of operations. It became apparent at this time that Brisbane Airport’s operations were unlikely to recover in the foreseeable future, with airlines advising it would take several months and years for international and domestic travel to recover.

[53] The Respondent determined that its Brisbane Airport operations were significantly overstaffed for the estimated operational requirements of BAC into the foreseeable future and therefore, a reduction in staffing would be necessitated. Consideration was also given to the fact that there was an ongoing associated cost with maintaining employees on stand down, through long service leave and annual leave accruals, which JobKeeper payments did not account for.

[54] Given the view that Secure Parking formed in relation to operations being significantly overstaffed for the estimated operational requirements of BAC, the Respondent, in consultation with BAC determined which positions would be required on an ongoing basis to support the operational requirements in respect of each service provided and which positions would be no longer required.

[55] Discussions were had between Mr Fossey, Mr Tabone and Mr Askin to understand the ability, competencies and reliability of the various employees. Mr Askin was involved in these discussions as he had previously worked with a number of the employees at Wilson and had deeper knowledge in relation to the employees who had subsequently commenced employment with Secure Parking.

[56] On 19 May 2020, Mr Fossey created a spreadsheet called Secure Parking Staff Master List, comprised of one Excel Spreadsheet Sheet. There were many different versions of this list. Factors that were considered in relation to selecting Kerbside Officers whose positions would be made redundant (taking into consideration the reduction from 45 to 17 Kerbside services roles) were, amongst other things:

(a) the type of engagement (i.e. casual or permanent employment);

(b) the length of service with Secure Parking; and

(c) the skill sets of specific employees, including supervisory experience, knowledge of valet services and CPO aptitude.

[57] The 19 May Staff Master List sets out a number of employees (including each employee code) with colour coded cells. The 19 May Staff Master list referred to all operations at the Brisbane Airport and was not limited to Kerbside Operations. The colour coded categories on the 19 May Staff Master List are:

(a) Green - Primary on Shift;

(b) Orange - Terminated or to be Terminated. The 101 terminated staff members at that time included casual staff members and members of the valet team;

(c) Red - Redundancy;

(d) Purple - Redundancy? This category included full-time valet staff. When making decisions about making valet staff redundant, there were considerations about who was selected for the remaining positions within the Brisbane Airport and costs per person;

(e) Light Blue - Casual - Valet Not on Roster; and

(f) Grey - Casual.

[58] Mr Fossey stated Mr Jones was categorised in the “Red – Redundancy” group in the 19 May Staff Master List. Mr Jones was part of the discussion held by management as a part-time Kerbside Officer whose position may be made redundant.

[59] Mr Fossey explained the total at the top right-hand corner of the 19 May Staff Master List listed 190 staff employed at the Brisbane Airport pre-COVID. As at that time, 101 employees at the Brisbane Airport had already been terminated. He says the redundancies and termination of casual employees was done reluctantly by the business and in various tranches in between July and September 2020.

[60] In around August 2020, Secure Parking found out that it would not be eligible for the extended JobKeeper subsidy beyond September 2020. It became apparent that further redundancies would be required, in circumstances where Secure Parking could not realistically maintain the employment of all employees where the economic conditions and operations of the business would not improve in the near future.

[61] As at 28 September 2020, a total of 631 employees were terminated from their employment with Secure Parking nationally.

[62] Mr Fossey was involved in the consultation process for the at-risk roles in around July 2020. He supported the work of Ms Michelle Bryant, Administration, Parking and Transport at Secure Parking in conducting some of the consultation meetings with affected employees. Ms Bryant had previous experience in HR and therefore led the onsite consultation process, with support from Ms Winston in the national HR team.

[63] Mr Fossey was aware at the time that there are employee consultation requirements Secure Parking was required to comply with under the Award regarding the potential redundancy of their position.

[64] Ms Winston and Secure Parking’s HR teams prepared the appropriate consultation communications which were issued to each affected employee. Based on Mr Fossey’s review of the email records and correspondence, and discussion with Ms Bryant regarding her actions in July 2020, he is informed that the consultation process with Mr Jones was conducted in the following manner:

(a) On 13 July 2020, Ms Bryant held a meeting by telephone with Mr Jones in which he was notified that his position was at risk of being made redundant due to changes in the operational requirements of BAC at Brisbane Airport. Ms Bryant discussed the effects of the redundancy of Mr Jones' position with him and sought his views on this;

(b) Ms Bryant provided Mr Jones with a consultation letter outlining the potential redundancy of his position as discussed during his consultation meeting;

(c) Ms Bryant was aware of a conversation that Mr Fossey had had with Mr Jones in around February 2020 regarding Mr Jones’ caring responsibilities for his ageing parents located in the Greater Brisbane Region. In February 2020, as Mr Jones had been absent from a number of shifts, Mr Fossey had a conversation with Mr Jones in which he advised he was providing care and support to his elderly parents, one of whom had serious health issues at the time. This circumstance was taken into consideration during the consultation process with Mr Jones including in determining suitable available redeployment options;

(d) At approximately 11.11am, 12.22pm and 1.05pm on 16 July 2020, Ms Bryant attempted to contact Mr Jones by telephone to discuss his ongoing employment and the potential redundancy of his position. Mr Fossey understands that Mr Jones did not respond to each telephone call;

(e) At approximately 1.14pm on 16 July 2020, Ms Bryant then sent email correspondence to Mr Jones noting that she had unsuccessfully attempted to contact him. As part of the employment with Secure Parking at Brisbane Airport, some management level employees, including Ms Bryant, Mr Fossey and Mr Tabone, had dual email accounts, with one being a Secure Parking email address and the other being a BAC email address, which were regularly used;

(f) In the 16 July 2020 email, Ms Bryant noted that she had been unable to identify any opportunities to which Mr Jones could be redeployed, both at Brisbane Airport or in the Greater Brisbane Region. The 16 July 2020 email notified Mr Jones that an outcome of the consultation process would be finalised on around 20 July 2020;

(g) At approximately 1.34pm on 21 July 2020, Ms Bryant telephoned Mr Jones to notify him of the redundancy of his position. Mr Jones advised Ms Bryant during the call that he did not want to attend his rostered shifts up to 3 August 2020 and asked to be removed from the roster and for Secure Parking to forget about him;

(h) Mr Jones did not attend for any further rostered shifts between 23 July 2020 and 1 August 2020, following the notification of the redundancy of his position. These shifts were recorded as leave without pay; and

(i) Mr Jones was provided with a termination letter by email, setting out the redundancy and confirming his last day of employment would be 3 August 2020.

[65] With respect to redeployment opportunities, Mr Fossey stated from around 1 April 2020, Secure Parking mandated a recruitment freeze across its business. At 8.40am on 1 April 2020, Ms Winston emailed Mr Andy King, Account Executive - SME at SEEK Limited (Seek) to put the recruitment contract with Seek on hold due to a cessation in recruitment associated with the COVID-19 pandemic.

[66] During April and May 2020, no jobs were advertised by Secure Parking on Seek.

[67] In July 2020, no alternative positions were available or advertised at Brisbane Airport. During the consultation process, Mr Fossey contacted Secure Parking’s Brisbane head office on multiple occasions to ascertain whether there were any available positions within Greater Brisbane Region. He was advised that there were no positions available for Brisbane Airport staff at that time.

[68] Mr Fossey’s evidence is that of the nine positions advertised by Secure Parking in July 2020, only one position was available as at 13 July 2020. This position was for a Car Park Manager located in Townsville. Mr Jones did not have the requisite skills and experience required to perform this position.

[69] During the consultation period between 13 July 2020 and 20 July 2020, the following additional positions were advertised by Secure Parking nationally:

(a) Car Park Manager- Campbelltown Hospital;

(b) Customer Service Officer WA - Perth Metro;

(c) Car Park Manager - Canberra Centre - Canberra; and

(d) Property Manager NSW - NSW Head Office.

[70] Mr Fossey stated Mr Jones did not have the requisite skills and experience required to perform the positions of Car Park Manager or Property Manager. Secure Parking did not consider it to be reasonable to relocate Mr Jones, a part-time Kerbside Officer, interstate in the midst of the COVID-19 pandemic and in circumstances where redundancies were being made across the business nationally.

[71] In circumstances where national and state government flight and entry restrictions had been imposed in response to the COVID-19 pandemic, Secure Parking did not consider it to be reasonable to pursue redeployment opportunities for Brisbane Airport employees outside of Queensland.

[72] Mr Fossey stated there were no reasonable redeployment opportunities available within Secure Parking or its associated entities on around 13 July 2020 to 21 July 2020 for which Mr Jones had the necessary skills, qualifications and experience.

[73] In cross-examination, Mr Jones put to Mr Fossey that when they had spoken by telephone, and Mr Jones had asked questions relevant to what would happen if he didn’t attend for work, Mr Fossey had said either that employees would be blacklisted or be on the naughty list. Mr Fossey denied making either statement. When I pressed Mr Jones as to which one it was, blacklisted or naughty list, he was unsure, perhaps thinking it was both terms, but eventually settled on blacklisted. Again, Mr Fossey denied making such a statement to Mr Jones.

[74] Mr Fossey stated in oral evidence that the Respondent was taking into consideration all employees’ circumstances when they were requested to return to work after many months off work. He stated that the Respondent was working with each individual, and understood that some employees had found work elsewhere.

[75] Mr Jones put to Mr Fossey that when he was at work in July 2020, he had seen new employees shown around. Mr Fossey denied that the Respondent had employed new employees at this time and stated that if Mr Jones had not seen the employees before, it was because they worked in different areas, and the Respondent had determined to cross-train those employees. Mr Jones agreed that while he had worked at the airport for a number of years, he did not come across all employees. He stated that he would have appreciated being introduced to the employees being cross-trained, and informed that they were existing employees.

[76] In re-examination, Mr Fossey confirmed that there had been a hiring freeze since 1 April 2020. A decision to cross-train existing employees was made, with commencement of cross-training in July 2020.

Respondent’s submissions

[77] Secure Parking submitted the termination of Mr Jones’ employment was clearly a case of genuine redundancy because:

(a) Secure Parking no longer required Mr Jones’ job to be performed by anyone because of changes in the operational requirements of Secure Parking’s enterprise, as a result of the COVID-19 pandemic and the change in the service requirements of BAC, being the service contract Mr Jones’ position was servicing;

(b) Secure Parking did consult with Mr Jones about the proposed changes; and

(c) it was not reasonable in all the circumstances for Mr Jones to be redeployed within Secure Parking’s enterprise or the enterprise of an associated entity as there were no suitable vacancies and a recruitment freeze was in place at the relevant time.

No longer required Mr Jones’ job to be performed by anyone

[78] Secure Parking submitted that there can be no doubt that Mr Jones’ position was redundant. In CFMEU v Spotless Facility Services Pty Ltd T/A Spotless 3 a Full Bench of the Commission held at [66] that:

“The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee.”

[79] Secure Parking noted redundancies can take many forms. An employee’s position is redundant in circumstances where the employer reorganises its structure or changes its operational requirements by breaking up the collection of functions, duties and responsibilities assigned to that employee and distributing them among the holders of other positions. 4

[80] Secure Parking also noted the Explanatory Memorandum to the Fair Work Bill 2008 identified instances of a redundancy at [1548] as including the following examples:

•  the job of an employee being replaced by a machine;

•  a reduction in the number of people required to perform a particular task or duty as a result of a downturn in business; or

•  where the employer restructures its 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. [Respondent’s emphasis]

[81] The evidence of Mr Fossey is:

(a) from around early March 2020, there has been a significant reduction in operations at Brisbane Airport as a result of the COVID-19 pandemic and government associated travel restrictions;

(b) on 19 March 2020, BAC advised Secure Parking of International Terminal Building Valet shutdown and Airpark Shutdown and requested the reduction in specific services;

(c) on 24 April 2020, BAC sent Change to Services Letter to Secure Parking confirming the removal of 9 out of the 17 positions occupied by Secure Parking’s kerbside employees;

(d) Secure Parking determined, in consultation with the Human Resources team, that Secure Parking’s Brisbane Airport operations were significantly overstaffed for the estimated operational requirements of BAC moving forward into the foreseeable future and therefore a reduction in staffing would be necessitated; and

(e) the reduction in the need for services provided by Secure Parking’s kerbside employees, including Mr Jones, meant that Mr Jones’ position was no longer required to be performed by anyone for the foreseeable future.

Consultation

[82] Noting Mr Jones’ employment with Secure Parking was covered by the Award, clause 30 of the Award provides:

“30. Consultation about major workplace change

30.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

30.2 For the purposes of the discussion under clause 30.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

30.3 Clause 30.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

30.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.1(b).

30.5 In clause 30 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

30.6 Where this award makes provision for alteration of any of the matters defined at clause 30.5 such alteration is taken not to have significant effect.”

[83] Secure Parking pointed to Mr Fossey’s evidence that:

(a) on 13 July 2020, Ms Bryant held a meeting by telephone with Mr Jones in which he was notified that his position was at risk of being made redundant due to changes in the operational requirements of BAC at Brisbane Airport;

(b) Ms Bryant discussed the effects of the redundancy of Mr Jones’ position with him and sought his views on this;

(c) Ms Bryant provided Mr Jones with a consultation letter outlining the potential redundancy of his position as discussed during his consultation meeting;

(d) on 16 July 2020, Ms Bryant made a number of attempts to contact Mr Jones by telephone to discuss his ongoing employment and the potential redundancy of his position;

(e) on 16 July 2020, Ms Bryant then sent email correspondence to Mr Jones noting that she had unsuccessfully attempt to contact him. In that email, Ms Bryant noted that she had been unable to identify any opportunities to which Mr Jones could be redeployed to, both at Brisbane Airport and other locations. The email also notified Mr Jones that an outcome of the consultation process would be finalised on around 20 July 2020; and

(f) on 21 July 2020, Ms Bryant telephoned Mr Jones to notify him of the redundancy of his position. Mr Jones advised Ms Bryant during the call that he did not want to attend his rostered shifts between 20 July 2020 and 3 August 2020 and asked for BAC to remove him from the roster and forget about him.

[84] Secure Parking submitted that the above steps satisfy the consultation requirements set out in clause 30 of the Award. It was also submitted Mr Jones did not raise any matters for consideration with respect to consultation.

Redeployment

[85] It was submitted that there were no reasonable redeployment opportunities available within Secure Parking or its associated entities in the lead up to 21 July 2020, being the date on which Mr Jones was notified of the termination of his employment on the basis of redundancy, at Brisbane Airport or in the Greater Brisbane Region. 5

Summary

[86] Secure Parking submitted that there can be no doubt that the above circumstances fall squarely within s.389 of the Act. As Mr Jones’ dismissal was a case of genuine redundancy, Secure Parking submitted the Commission does not have jurisdiction to hear the application. It submitted the application ought to be dismissed.

Mr Jones’ evidence and submissions

[87] Mr Jones stated his job at Secure Parking was a Kerbside Officer, in which he attended to unattended parked cars, helped the public with directions of where to park, helped with their luggage, and made sure the road runs were clear and safe.

[88] Mr Jones made the below statement in these proceedings:⁶

“I Raymond Jones worked for Secure Parking at the Brisbane Airport on the 20/11/2019 working on kerbside I was enjoying my time here until the company said there will be some job losses due to the Covid 19 virus there were two notices to the upcoming at first I was to say to be stood down. I was stood down on the 27/3/2020, so many people got it the letter then I had a phone call from a person who at the time was Dan Fossey to come back to work, so I came back to work on the 26/6/2020, Then I ask why there’s not much work here but Dan said we must come back to work because of the government was paying the job keeper, so most people came back to work some co-workers weren’t happy coming back an some of them who were at the time working ask why are we here so we all told them why, cause we all had a phone call from Dan, Michael, to come back to work, but they were unhappy cause we were earning more than them (workers).cause we were at home getting the job keeper.so I rang Dan up to find out what’s going on I ask why !the ones stood down got the job keeper they didn’t go back to work he(Dan) also said to me an others if didn’t go back we would be put you on the black list if the work comes back to life .(and that was his(Dan ) words he spoke to many like that . I said ok. so I went back to work an there was no change the airport was still very quiet an only a few people were working but gave work out at 20hrs per week I was happy then the second letter came from Michael and said we regret what we have to do is redundant so many workers cause of the Covid 19 virus. But in the meantime secure parking people where moving people around an showing other workers from the carpark an call them in to do my job as well as other co-workers jobs which were not qualified to do the job.

I Raymond was at work the day three new work colleges turned up one said we are going to take your job because your job is now redundant so I rang Dan Fossey up an asked why am I being redundant he (Dan) said your job is no longer required an other workers want your hours, I said you still require a worker here He (Dan) said yes that’s right but you’ll be redundant so will others, but when I found out from the other co-workers that the job was still going I thought that wrong ,the job is still here I did ask the BAC people about what was going on an there comment was we have nothing to do with it the job or position is here an don’t know what or why secure parking is doing is still there today .an don’t understand why the company is doing it cause they lost a lot of hard working an experienced workers that at the time.

My experience is that redundancy is the job does not exists or position any more, an you are not required for work, but the job or position is still there today I think they just wanted to get rid of the people. I think because the company just started a new contract it was easy to get rid of the one from the previous company because they didn’t want to pay out as much. My last shift was the 1/8/2020 , I then redundant on the 3/8/2020 I had a letter before that date.

All I’m asking for is (4) weeks’ compensation pay its hard for me at my age to get work at 56yrs I have trying every day an look after my elderly parents an look for a job, I have been working at the Brisbane Airport for over 16 plus years and I quite enjoyed it, I worked as a cleaner an kerbside officer I was never late always on time.

My job to look after the ground floor or level 1-2 at the Brisbane international airport to stop the public coming up having a look, we gave instructions to the public or the limo drivers where they should be or go for pick up, the only people that where aloud at the time was Queensland police, Australian Federal Police, and the Army people also coaches picking up passenger’s from the aircraft after passing through customs. Other duty was look after the level 4 ,myself and the other co-worker just swapped position’s to make the shift go a bit better there was only about 4-5 aircraft coming in during the day an about 2 -3 during the evening . We got the job done what was required.

I still don’t understand why we got redundant early when the government was helping companies with job keeper it wasn’t coming out of the company’s pocket, they could of utilised workers that were at home that where stood down an ask everyone to relieve the ones that have been working all the time give them a nice break with their family if you know what I mean before getting rid of us all together I think that would have been more fairer then let us go, it would be fair in my way of thinking. We all supposed to be a team.

I also don’t know why management didn’t lose any time or money when all this was happening why the workers should suffer all the time

My pay was not right I had approximately 40hrs in holidays ,the pays were not wright if you ask why it takes the company a while to get back to you sometimes it’s like they didn’t care at times .when the government was paying the $1500 an the last pay slip was wrong an tried to send an email back they closed all access to check up on what you should get payed. So you try an ask they didn’t want to know cause you were gone out the door as quick as you got in.” [original text]

[89] My Jones noted Secure Parking says the reason for his dismissal was that there was no work due to COVID-19. He submitted, however, the airport was still operating, and someone is still required to look after level four to make sure no one leaves their cars unattended and also to make sure no one drives up to park on level two. He noted that International flights are still coming in.

[90] It was submitted Mr Jones’ job is still there; other persons (new work colleagues) took over his job. He understands the Respondent had to train the new work colleagues to do the job. Mr Jones is not sure if the trainees had the right licenses or tickets to do the job. He says the trainees were shown how to do the job with an old work college who has been employed a while.

[91] Mr Jones gave evidence he has made bona fide attempts to look for work since his termination. He has been on the computer every day, getting job alerts from sites such as Indeed and Seek. Jobs he has applied include cleaning, working in stores, replenishing shelves, working on farms, for mine sites in central Queensland, and working at a macadamia farm in Bundaberg. He has had a few interviews, and one medical for a mine site.

[92] In cross-examination, Mr Jones agreed that when he was working for the Respondent he did not do any valet work, nor did he do any team leader work or supervisory work. He stated that he did not wish to be a team leader or a supervisor.

[93] Mr Jones confirmed that the B roster which was implemented following the return to work was a reduction in hours of work. He stated that he performed whatever was asked of him. He understood that if things returned to normal he could revert to the earlier roster, if that is what the Respondent desired.

[94] Mr Jones stated that he preferred to return to work rather than stay at home. He repeated his claim that Mr Fossey had informed him that if he did not return to work he would be put on a blacklist.

[95] Regarding what he considered to be new employees, he said that he didn’t know them, nor were they introduced to him. He said that he wouldn’t know valet parking people.

[96] Mr Jones stated that he couldn’t recall if Ms Bryant called him on 13 July 2020. He acknowledges the letter sent by her on that day references a telephone call between them. Mr Jones stated that he thought there might be a meeting held to discuss issues, but it didn’t eventuate, and his termination was effected on paper. He agreed that he did not ask for a meeting. He stated that he was dealing with caring for his elderly mother. He considered that he would eventually be made redundant or returned to work.

[97] He stated that at the time of the hearing he had not found work, however he had been looking.

[98] He suggested that for redeployment he could have been put no relief to cover for other employees’ “smoko breaks” or been put to work at the domestic terminal. He stated that he understood where the Respondent was coming from, and it would have been more expensive for them to make longer-serving employees redundant than him, who had been in the Respondent’s employment for less than 12 months.

Consideration

[99] I turn now to a consideration of the criteria set out in s.389 of the Act. For Mr Jones’ dismissal to be a case of genuine redundancy, the Respondent must meet each of the criteria set out in s.389 of the Act.

s.389(1)(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

[100] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. 7 Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.8

[101] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 9 considered this point and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. The Full Bench in Ulan Coal Mines Limited v Howarth and others10 considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals11 and said:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)”

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[102] The Respondent’s business was, no doubt, substantially affected by the dramatic downturn in domestic and international aviation travel in 2020. Mr Jones understands this; he stated that even on his return to work in late June 2020 there was little work to do. The Respondent stated that employees were returned to work for 16 hours per week; Mr Jones said he worked 20 hours per week.

[103] Domestic aviation travel had not by late July 2020 returned to usual levels. The Respondent had a substantial number of eligible employees on JobKeeper but would have been unsure if it would have been eligible for the extension to JobKeeper after September 2020. On the Respondent’s evidence, it did not learn that it was not eligible for the next round of JobKeeper until August 2020. Further, I accept that part of its decision making to retain employees was its consideration that it was responsible for accruing annual leave and long service leave for employees on JobKeeper.

[104] It made a decision to reduce the number of employees at its various locations, including its various car parks nationally. At the Brisbane Airport, it did not recruit new employees as Mr Jones had supposed; it re-trained some of its Valet Service employees to do Kerbside Services so that when demand eventually increases, it has employees who can perform work across all of the areas of its business.

[105] The Respondent was entitled to take the action which it did. On its evidence, which I accept, 45 Kerbside Service roles reduced to 17 roles. The role that Mr Jones was performing is now absorbed into some of the duties of other existing employees. Those employees are now more versatile to the Respondent and therefore more valuable to it.

[106] I am satisfied that following the changes in the operational requirements of the Respondent’s enterprise, the Respondent no longer required Mr Jones’ job to be performed by anyone else. The criterion in s.389(1)(a) of the Act is satisfied.

s.389(1)(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

[107] The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. It is not disputed that Mr Jones was employed under the Award; the consultation clause is produced at [82].

[108] Having particular regard to the Respondent’s actions at [83] which details Ms Bryant’s steps in telephoning Mr Jones, sending him a letter which he acknowledges receipt of and attempting to have further discussion with him several days later, I am satisfied that the Respondent has complied with its obligation in the Award that applied to Mr Jones’ employment to consult about the redundancy. The criterion in s.389(1)(b) of the Act is satisfied.

s.389(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.

[109] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal. 12 

[110] In Hallam v Sodexo Remote Sites Australia Pty Ltd, 13 a Full Bench of the Commission stated the following:

“…..Subsection 389(2) states that 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. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.”

[111] As the Full Bench observed in TAFE NSW v Pykett, 14 to show that it would have been reasonable for the Respondent to redeploy Mr Jones, it is not necessary to identify a particular job or position in which Mr Jones could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy Mr Jones.

[112] On the evidence before the Commission, there was no other job or a position or other work available for Mr Jones to have been moved into on or around 20-21 July 2020. The roles the Respondent was advertising in other Australian states or territories were beyond Mr Jones’ skill level, and in any event were interstate at a time where heavy border restrictions applied.

[113] Mr Jones’ suggestion that he could have been redeployed covering other employees’ “smoko breaks” is not helpful. The Respondent did not require such cover with its severely depleted workforce.

[114] On the evidence before the Commission, I am satisfied that it would not have been reasonable in all the circumstances for Mr Jones to have been redeployed within the Respondent’s business or any of its associated entities.

Conclusion

[115] The jurisdictional objection that the dismissal was a case of genuine redundancy requires two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[116] For all of the reasons set out above I am satisfied that Mr Jones’ dismissal was a case of genuine redundancy because as at 21 July 2020 when Mr Jones was informed of the termination of his employment:

(a) Secure Parking no longer required Mr Jones’ job to be performed by anyone because of changes in the operational requirements of its enterprise;

(b) Secure Parking consulted with Mr Jones in accordance with the Award; and

(c) it would not have been reasonable in all the circumstances for Mr Jones to be redeployed within Secure Parking’s enterprise or the enterprise of an associated entity of Secure Parking.

[117] The application is dismissed.

COMMISSIONER

Jones R, Applicant.
Bulut V, for the Respondent.

Hearing details:

23 November 2020, by Telephone.

Printed by authority of the Commonwealth Government Printer

<PR728071>

 1 Witness Statement of Mr Daniel Fossey, 15 October 2020, [35] – [46].

 2 Ibid, [77] – [88].

 3   [2015] FWCFB 1162.

 4   Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Wilson[2014] FWCFB 1043; Ulan Coal Mines Limited v Howarth & Others (2010) 196 IR 32.

 5 Witness statement of Mr Daniel Fossey, [124] – [137].

6 Witness Statement of Mr Raymond Jones, 20 October 2020.

 7   Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].

 8   Ibid.

 9   [2010] FWA 674.

 10   [2010] FWAFB 3488.

 11 (1995) 60 IR 304.

 12   Ulan Coal Mines Limited v Honeysett (2010) 199 IR 363 at [28].

 13   [2017] FWCFB 6847 at [20].

 14   [2014] FWCFB 714, (2014) 240 IR 130 at [36].