Ms Belinda Jones

[2015] FWC 1391

[2015] FWC 1391

FAIR WORK COMMISSION

DECISION

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

Ms Belinda Jones
(U2014/8422)

Ms Carol Bullman

(U2014/11366)

Mr Brian Bullman

(U2014/11372)

v
Bechtel Corporation T/A Bechtel Australia Pacific LNG

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 MARCH 2015

Application for Relief of Unfair Dismissal - genuine redundancy

[1] On 20 July 2014 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Belinda Jones. On 4 August 2014 applications pursuant to s.394 of the Act were lodged by Ms Carol Bullman and Mr Brian Bullman.

[2] Bechtel Corporation objected to all three applications on the basis that each dismissal was a case of a genuine redundancy.

[3] Conciliation conferences were cancelled because Bechtel Corporation requested that the jurisdictional objection be determined prior to conciliation and the applications were then listed on 10 November 2014. Ms Jones appeared in person in Brisbane. Ms Bullman and Mr Bullman were represented by Ms Jones, and attended the hearing via video link from Darwin. Bechtel Corporation was represented by staff, Ms Wendy Brown and Ms Kristin Meikle, by video link.

[4] Evidence was given by Mr Daniel Dawson, Bechtel Corporation Deputy Site Manager for Australia Pacific LNG (APLNG), via video link from Gladstone. He was cross-examined by Ms Jones.

[5] On 9 January 2015 I determined that the termination of employment, the subject of each application, arose from a genuine redundancy. I ordered the dismissal of each application. My reasons for decision are set out below.

[6] The applicants were employed as bus drivers on the APLNG Project on Curtis Island off Gladstone, Queensland. Ms Jones and Ms Bullman had been employed since November 2012 and Mr Bullman since October 2012.

[7] On or about 6 June 2014 Bechtel Corporation issued a Workforce Services Bulletin advising staff that the number of its bus drivers would be reduced in response to decreased bussing needs. The bulletin advised the relevant notice periods and the method by which positions would be identified as redundant. The notice also advised the method by which employees could register for re-employment.

[8] In July 2014 each of the applicants was advised in writing that their position was to be made redundant.

[9] Bechtel Corporation submitted that I should dismiss the applications because each of the dismissals was a genuine redundancy. Section 389 of the Act defines genuine redundancy as follows:

“389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

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

[10] I must be satisfied that the role of bus driver performed by each of these applicants was no longer required to be performed by anyone because of operational changes within Bechtel Corporation.

[11] Bechtel Corporation submitted that in January 2014 APLNG management conducted a review of its budget and determined that the operating costs of the APLNG bus crew had exceeded the forecast budget. In response it decided that a review of the bussing operations was required. The restructure involved the consolidation of bus journeys which coincided with the completion of pedestrian walkways. Bechtel Corporation submitted that this restructure reduced the need for bus drivers and the applicants’ jobs were no longer being required to be performed by anyone.

[12] The applicants were employed pursuant to the Bechtel Queensland LNG Projects Union Greenfield Agreement (the Agreement). Bechtel Corporation submitted that the Agreement did not impose an obligation to consult with the applicants about the redundancy.

[13] It also submitted that the possibility of redeployment was considered. Mr Dawson gave evidence that the Bechtel Recruitment Officer was contacted by the Workforce Services team to determine whether any of the five employees whose positions were to be made redundant possessed the skills and experience necessary for roles available on the Gladstone LNG (GLNG), Queensland Curtis LNG (QCLNG), Procurement Joint Execution Team (PJET), Wheatstone or APLNG projects. Mr Dawson’s evidence was that the Bechtel Recruitment Officer was unable to identify any suitable positions to which the applicants could be redeployed.

[14] Mr Dawson stated that the selection of bus drivers for redundancy was determined using a standardised selection template, in which the drivers’ performance in a series of categories was allocated a mark from 1 to 5 (with 1 being “does not meet expectations” and 5 being “always exceeds expectations”).

[15] The applicants submitted that “the Bechtel Corporation failed to maintain an implied and explicitly stated commitment to mutual trust and confidence”. Ms Jones relied on the judgement of Barker v CBA 1 and on clauses 7(a)(2) and 7(a)(3) of the Agreement. These state:

“7. Objectives

(a) The objectives of this Agreement are to:

(2) treat employees with fairness and respect,

(3) provide open and regular information to its employees and engage in interactive communication processes”

[16] The applicants submitted that:

• Bechtel Corporation failed to meet these objectives because of its lack of consultation and that their confidence was “betrayed”.

• The desired reduction in bus drivers was met through redeployment and natural attrition and that there was subsequently no need for Bechtel Corporation to make any positions redundant.

• Bechtel Corporation failed to meet the requirements of s.389(2), because it failed to ascertain whether any suitable redeployment opportunities existed outside Queensland, in sites other than GLNG, QCLNG and PJET.

• A redeployment search only took place after the decision to make the applicants’ positions redundant had already been made.

• Bechtel Corporation failed to consider or discuss the option of offering additional training to enable the applicants to be redeployed within the enterprise.

[17] I accepted Mr Dawson’s evidence regarding the process leading to the termination of employment of these three applicants.

[18] When asked about whether the applicants were given reasonable opportunity to update their CV, Mr Dawson confirmed that all applicants were notified of the impending redundancy. Mr Dawson explained:

“We notified all applicants - or I should say all craft employees in this classification, that we were going to be performing a redundancy; that we would look first to redeploy any of these individuals into other trade classifications for which they were qualified. Again, that notification was provided approximately six weeks prior to the redundancy actually being put into effect and therefore they had ample opportunity to update their resume or seek a redeployment on the project or with another project that we had ongoing.”

[19] The applicants submitted that, given the size of the respondent company, redeployment within Bechtel Corporation was a viable and realistic option. When asked about the extent to which he considered redeployment options for the applicants, Mr Dawson stated:

“We did develop a redeployment plan. That's why we redeployed 12 other individuals in the same group to other trade classifications, including scaffolding, electrical, as well as our insulation work. No, we did not consult employees on an individual basis for redeployment, but we do in our notification of redundancy alert people that there are potential redeployments and to work that with their supervisor.”

[20] Mr Dawson explained why he limited his search to three sites for the applicants’ redeployment:

“Typically that is what we do. We check the Curtis Island projects. Our workforce services manager consults with our recruitment officer. Our recruitment officer also does check with the Wheatstone project that we have ongoing in Onslow, Western Australia. Those are the four projects that are operating in Australia that we currently are affiliated with through our Bechtel oil, gas and chemicals organisation.”

He continued;

“....our central services organisation - here in Gladstone that is responsible for the three Curtis Island projects and PJET, also has recruitment oversight over Wheatstone. As I'm not directly associated with the Wheatstone project, I could not put that in my affidavit that they did check that. You would need to consult with Brennan Davis, our workforce services manager, or the recruitment officers at CSO to get the exact projects they looked at.”

[21] In his witness statement, Mr Dawson stated that those employees who were selected for redundancy were assessed based on their skills and experience for positions at GLNG, QCLNG and PJET sites and that the Bechtel Recruitment Officer did not identify the applicants as suitable for redeployment at those sites. When asked by Ms Jones about the potential for re-training the applicants Mr Dawson stated that at the time the respondent was restructuring its workforce it redeployed those employees who could be reasonably redeployed until there were “no more open positions that we could redeploy somebody to where you met the qualifications.” 2

[22] I was satisfied that Bechtel Corporation no longer required the jobs of these three applicants to be performed by anyone. I was satisfied that this arose from the application of new budgetary and operational requirements applicable to Bechtel Corporation's enterprise.

[23] There is no obligation articulated in the Agreement for consultation to occur concerning these issues. Despite this I am satisfied that Bechtel Corporation consulted the workforce and did so to an appropriate and fair extent.

[24] I am satisfied that Bechtel Corporation searched, to the extent that was reasonable in all circumstances, for redeployment opportunities within its projects for all three of these applicants. An obligation to search internationally would not be reasonable given the particular employment of these applicants. I am satisfied that no positions were available.

[25] In her cross-examination of Mr Dawson, and submissions, Ms Jones suggested that the criteria used by the respondent to assess an employee’s candidature for redundancy was “subjective, simplistic and of inferior quality”. I was satisfied that the criteria applied by Bechtel Corporation in determining the eligibility of employees for redundancy was a largely irrelevant issue. Ms Jones criticised the Bechtel Corporation criteria. However, the selection of criteria, absent any discriminatory or otherwise illegal or inappropriate guidelines, is a matter for an employer. I am satisfied that Bechtel Corporation applied its own reasonable redundancy criteria equally to all employees.

[26] For the reasons outlined above I found that each dismissal was a case of genuine redundancy. Pursuant to my Order issued on 9 January 2015 the applications were dismissed.

SENIOR DEPUTY PRESIDENT

 1 [2012] FCA 942

 2   Transcript PN160

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