[2017] FWC 3113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Norwest Child Care Centre Pty. Limited.
v
Cathy Paul & Others
(C2016/7482), (C2016/7483), (C2016/7484), (C2016/7492), (C2016/7493), (C2016/7494), (C2016/7495), (C2016/7496), (C2016/7501), (C2016/7502), (C2016/7504), (C2016/7506)

Educational services
COMMISSIONER JOHNS	SYDNEY, 7 JUNE 2017

Redundancy - entitlement under the NES - application to vary redundancy pay due to other employment - alternative position acceptable - whether employer obtained the other employment.

Introduction
[1] Norwest Child Care Centre Pty Ltd (Norwest) has made applications to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (FW Act) in relation to redundancy payments otherwise due to its former employees. Norwest is seeking that the redundancy payments that would otherwise be due to its employees be reduced by varying percentages on the basis that, it says, it obtained acceptable alternative employment for each of them.

[2] The employees oppose the applications on the basis that, they each say, they obtained the alternative employment for themselves, rather than Norwest.

[3] The applications were all made by Norwest at the same time. Twenty applications were made. However, by the time final submissions were filed, only 12 applications remained outstanding.

[4] The matters were heard together and a common substratum of facts pertained to all of the applications. However, because some circumstances differ in respect of each individual, I have decided to issue this decision with 12 separate schedules. Accordingly, this decision should read as though it is 12 separate decisions each comprising of the substantive body of the decision paragraphs [1] – [48] with the schedule applying to each individual respondent.
[

5] Twelve individual Orders will be issued with this decision.

Hearing

Permission to be represented

[6] The Commission, as presently constituted, granted permission to be represented to those parties who made an application to be represented. Having regard to the nature of various applications that were heard jointly I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if parties were allowed to be represented pursuant to s.596(2)(a) of the FW Act. Consequently, permission was granted to each party who sought to be represented.

The hearing

[7] At the hearings on 10 February 2017, 17 February 2017 and 17 March 2017:

a) the applicant was represented by Mr Mark Hanna, a solicitor,
b) the following respondents were represented by Mr Sam Lavery and Mr James Clifford, solicitors from Laxon Lex Lawyers:

i. Emily Grinter (2016/7483),

ii. Matthew Summons (2016/7493),

iii. Tamara Carter (2016/7496),

iv. Dannielle Johansen (2016/7501),

v. Fernanda Batista (2016/7502), and

vi. Bryn Williams (2016/7506),

(Represented Six)

c) Emma Talbot (2016/7484) represented herself,
d) the following respondents were unrepresented:

i. Cathy Paul (2016/7482),

ii. Jessica Whipps (2016/7492),

iii. Kalesita Kalhau (2016/7494),

iv. Siobhan Robinson (2016/7495), and

v. Naoko Hisada (2016/7504).

Submissions and evidence

[8] The Commission, as presently constituted, has had regard to all of the evidence received including submissions made at the hearing and the documents filed prior to the hearing (that were tendered as exhibits). Consequently, in coming to these decisions the Commission, as presently constituted, has had regard to the following:

Exhibit no.	Description	Transcript ref.
A1	Statement of Nesha Hutchinson in relation to Fernanda Batista dated 13/1/2017	PN137
A2	Additional statement of Nesha Hutchinson in relation to Fernanda Batista dated 2/2/17	PN144
A3	Statement of Nesha Hutchinson in relation to Tamara Carter dated 13/1/2017	PN235
A4	Additional statement of Nesha Hutchinson in relation to Tamara Carter dated 2/2/17	PN239
A5	Statement of Nesha Hutchinson in relation to Dannielle Johansen dated 13/1/2017	PN358
A6	Additional statement of Nesha Hutchinson in relation to Dannielle Johansen dated 2/2/17	PN362
A7	Statement of Nesha Hutchinson in relation to Emily Grinter dated 13/1/2017	PN440
A8	Additional statement of Nesha Hutchinson in relation to Emily Grinter dated 2/2/17	PN446
A9	Statement of Nesha Hutchinson in relation to Matthew Summons dated 13/1/2017	PN475
A10	Additional statement of Nesha Hutchinson in relation to Matthew Summons dated 2/2/17	PN480
A11	Statement of Nesha Hutchinson in relation to Bryn Williams dated 13/1/2017	PN532
A12	Additional statement of Nesha Hutchinson in relation to Bryn Williams dated 2/2/17	PN536
A13	Additional statement of Nesha Hutchinson in relation to all respondents dated 2/2/17	PN650
A14	Outline of argument in relation to all respondents	PN678
A15	Statement of Ngaire Hutchinson in relation to Matthew Summons dated 2/2/17	PN699
A16	Statement of Ngaire Hutchinson in relation to Bryn Williams dated 2/2/17	PN725
A17	General Statement, Business Structure and Lease Agreement by Ngaire Hutchinson dated 3/2/17	PN758
A18	Statement of Kylie Weller in relation to Fernanda Batista dated 14/1/17	PN778
A19	Statement of Kylie Weller in relation to Tamara Carter dated 14/1/17	PN795
A20	Statement of Kylie Weller in relation to Dannielle Johansen dated 14/1/17	PN817
A21	Statement of Kylie Weller in relation to Emily Grinter dated 13/1/17	PN844
A22	Statement of Kylie Weller in relation to Matthew Summons dated 13/1/17	PN857
A23	Statement of Kylie Weller in relation to Bryn Williams dated 14/1/17	PN876
A24	Statement of Elizabeth Ann Bransbury in relation to Bryn Williams dated 3/2/17	PN915
A25	Statement of Nesha Hutchinson in relation to Amanda Edmund Jones dated 13/1/2017	PN1863
A26	Additional statement of Nesha Hutchinson in relation to Amanda Edmund Jones dated 2/2/17	PN1844
A27	Statement of Nesha Hutchinson in relation to Rebecca Pickard dated 13/1/2017	PN2786
A28	Additional statement of Nesha Hutchinson in relation to Rebecca Pickard dated 2/2/17	PN2790
A29	Statement of Kylie Weller in relation to Rebecca Pickard	PN2826
A30	Statement of Nesha Hutchinson in relation to Rachel Khattab dated 13/1/2017	PN2873
A31	Additional statement of Nesha Hutchinson in relation to Rachel Khattab dated 2/2/17	PN2884
A32	Statement of Kylie Weller in relation to Rachel Khattab	PN2984
A33	Statement of Ngaire Hutchinson in relation to Rachel Khattab	PN3008
A34	Statement of Nesha Hutchinson in relation to Emma Talbot dated 13/1/2017	PN3392
A35	Additional statement of Nesha Hutchinson in relation to Emma Talbot dated 2/2/17	PN3397
A36	Statement of Kylie Weller in relation to Emma Talbot dated 14/1/2017	PN 3430
A37	Statement of Ngaire Hutchinson in relation to Amanda Geisler dated 13/1/2017	PN 3502
A38	Statement of Nesha Hutchinson in relation to Cathy Paul dated 13/1/2017	PN 3503
A39	Statement of Kylie Weller in relation to Cathy Paul dated 13/1/2017	PN 3504
A40	Statement of Nesha Hutchinson in relation to Frances Elms dated 13/1/2017	PN 3512
A41	Statement of Nesha Hutchinson in relation to Jacqueline Dacey dated 13/1/2017	PN 3521
A42	Statement of Nesha Hutchinson in relation to Jessica Whipps dated 13/1/2017	PN 3529
A43	Statement of Kylie Weller in relation to Jessica Whipps dated 13/1/2017	PN 3530
A44	Statement of Nesha Hutchinson in relation to Kalesita Kalhau dated 13/1/2017	PN 3538
A45	Statement of Kylie Weller in relation to Kalesita Kalhau 14/1/2017	PN 3539
A46	Statement of Nesha Hutchinson in relation to Siobhan Robinson dated 13/1/2017	PN 3540
A47	Statement of Kylie Weller in relation to Siobhan Robinson dated 13/1/2017	PN 3541
A48	Statement of Nesha Hutchinson in relation to Naoko Hisada dated 13/1/2017	PN 3542
A49	Statement of Kylie Weller in relation to Naoko Hisada dated 13/1/2017	PN 3543
A50	Applicant’s Final Submissions	PN 3751
A51	Corporate Structure Diagram	PN 3772
A52	Corporate Structure Explanation	PN 3773
A53	Leave Balances	PN 3776
A54	Amended Table – Cathy Paul	PN 3781
A55	Amended Table – Emily Grinter	PN 3790
A56	Amended Table – Emma Talbot	PN 3791
A57	Amended Table – Jessica Whipps	PN 3794
A58	Amended Table – Matthew Summons	PN 3795
A59	Amended Table – Kalesita Kalhau	PN 3796
A60	Amended Table – Siobhan Robinson	PN 3797
A61	Amended Table – Tamara Carter	PN 3798
A62	Amended Table – Dannielle Johansen	PN 3799
A63	Amended Table – Fernanda Batista	PN 3800
A64	Amended Table – Naoko Hisada	PN 3801
A65	Amended Table – Bryn Williams	PN 3802
R1	Statement of Fernanda Batista dated 30/1/17	PN924
R2	Statement of Tamara Carter dated 3/1/17	PN1032
R3	Statement of Dannielle Johansen dated 30/1/17	PN1125
R4	Statement of Emily Grinter dated 30/1/17	PN1224
R5	Statement of Matthew Summons dated 30/1/17	PN1309
R6	Statement of Bryn Williams dated 30/1/17	PN1426
R7	List of objections with respect to Edmund Jones, Khattab and Pickard	PN 1788
R8	Statement of Amanda Robyn Edmund-Jones dated 27/1/17	PN 2660
R9	Email from Nesha Hutchinson to Edmund Jones dated 2/1/17	PN 2752
R10	Statement of Rebecca Pickard dated 27/1/17	PN 2837
R11	Statement of Rachel Khattab dated 27/1/17	PN 3312
R12	Tender Bundle	PN 3374
R13	Email from Tamara Carter to Northwest Child Care dated 15/2/17	PN 3385
R14	Statement of Emma Talbot dated 29/01/2017	PN 3461
R15	Bundle of documents attached to email of Talbot dated 5/2/17	PN 3465
R16	Email from Cathy Paul to Chambers dated 16/2/17	PN 3511
R17	Email from Frances Elms to Chambers dated 16/2/17	PN 3517
R18	Statement of Jacqueline Dacey dated 27/1/17	PN 3528
R19	Email from Naoko Hisada to Chambers dated 16/2/17	PN 3548
R20	Outline of contentions by IEU	PN 3549
R21	Outline of argument filed by Lavery on behalf of 6 respondents	PN 3550
R 22	Submissions filed for the “represented 6”	PN 3803
MFI 1	Email from Tamara Carter to Norwest Child Care Centre dated 15/12/16	PN 325
MF1 2	Offer of employment to Amanda Edmund Jones dated 23/12/16	PN 661
MFI 3	Respondent’s Abbreviated Chronology	PN 3378
MFI 4	Statement of Jessica Whipps	PN 3537

Background common to each application

[9] The following matters were either agreed between the parties or not otherwise substantially contested:

a) In March 2003 the Norwest Child Care Centre (NCCC) opened. 1

b) From December 2003, the NCCC was operated by the respondent, Norwest. 2

c) The Directors of Norwest are sisters Nesha Hutchinson and Ngaire Hutchinson. For ease of reference (and not out of any sense of familiarity), in this decision, I refer to the Directors as “Nesha” and “Ngaire” respectively.

d) In partnership Nesha and Ngaire (Hutchinson Partnership) owned the land upon which NCCC operated. 3 The Hutchinson Partnership leased the land upon which the NCCC operated to Norwest.4

e) Ngaire is associated with another child care centre, the Midson Road Child Care Centre (Midson Road). A company has been established known as Midson Road Child Care Centre Pty Ltd (MRCCC) to operate Midson Road. Ngaire is the 100% shareholder in MRCCC. 5

f) Nesha is associated with other child care centres, namely, Top Ryde Early Learning (Top Ryde) and Stellar Kids (Kenthurst) (Kenthurst). Top Ryde is a partnership between Nesha’s company, Stellar Learning Group, and King Learning. It is proposed that employees of Top Ryde and Kenthurst will be employed by Stellar Learning Employment Pty Ltd (SLE). Nesha is the 100% shareholder in SLE. 6

g) In March 2016 Nesha and Ngaire began discussions to sell the land upon which NCCC operated. 7

h) On 17 June 2016 a contract of sale was exchanged with a purchaser, Mulpha Norwest Pty Ltd (Mulpha). 8 The settlement date was 15 November 2016.

i) Part of the deal was that the Norwest lease of NCCC was to be assigned by the Hutchinson Partnership to Mulpha on the settlement date. Consequently, Norwest would continue to lease the land so that it could continue to operate the NCCC for three years post sale of the land. 9

j) On 9 November 2016 the lease between the Hutchinson Partnership and Norwest was amended. The amendment gave the Hutchinson Partnership the right to terminate the lease for demolition. The amendment was made at the request of the incoming landlord, Mulpha. That is to say, the benefit of being able to issue a demolition notice was assigned to Mulpha at settlement. The amended lease also provided for a rent free period from 15 January 2016 – 14 January 2017.

k) On 15 November 2016 (i.e. at settlement) Mulpha gave Norwest notice that it wanted to demolish the premises (Demolition Notice) 10 and that, consequently, it required the NCCC business to close by 14 January 2017.11

l) On 16 November 2016 there was an all staff meeting. As a consequence of Norwest receiving the Demolition Notice, Norwest gave notice of termination to its employees with effect from 23 December 2016. 23 December 2016 was the day on which the NCCC would have (in any case) closed for the annual shut down. Between 23 December 2016 and the reopening of the NCCC on 16 January 2017 (the shut-down period) employees would have been on annual leave.

m) It was intended that employees would work out their notice period.

n) Also in attendance at the meeting on 16 November 2016 was Kylie Weller. Ms Weller had been engaged by Norwest to assist employees find suitable alternative employment due to the closure of NCCC. More about the role played by Ms Weller is discussed in the Schedules to this decision.

o) Employees were broken up into three groups as follows:

i. Group One: were employees with less than 12 months service with Norwest. It was communicated to these employees that their employment would end on 23 December and that their annual leave would be paid out. The prospect of some casual work “packing up” the NCCC was canvased.
ii. Group Two: were employees intended to be offered positions with other child care services operated by Nesha and Ngaire. The letter they received stated,

“….
It is our goal to ensure that we find as many of you as possible positions either at one of our other child care centres. We will still be operating Child Care Centres in North West Sydney and we have some positions available which we are seeking to fill

• Nesha is opening up Stellar Kids in Kenthurst and developing a new site in North Epping, as well as operating Top Ryde Early Learning.
• Ngaire will continue to operate Midson Road Child Care Centre in Epping.

As such we would like to arrange an interview for you to consider a role at one of these locations.
Please speak with Liv Taylor / Nesha Hutchinson to confirm a suitable interview time over the coming days. As you can appreciate, we would like to get these interviews done as soon as possible, and we have most interviews scheduled for tomorrow.
….
We know that you may have questions, and we ask that you are patient with us in the coming weeks. This is all new and overwhelming for us as well. Ideally if you could put your questions into email (…) It will help us address everyone’s issues in a timely manner, and we can potentially respond to group questions as a whole.”
Group Two employees included: Emily Grinter, Emma Talbot and Matthew Summons.

iii. Group Three: were employees who were to be provided with outplacement support by Ms Weller, but not necessarily offered employment with a facility associated with Nesha or Ngaire.

Group Three employees included: Bryn Williams, Cathy Paul, Dannielle Johansen, Fernanda Batista, Jessica Whipps, Kalesita Kalhau, Siobhan Robinson and Tamara Carter.

p) During the notice period Norwest allowed staff to take time off to attend job interviews (with notice). Time taken off to attend interviews was paid time. 12

q) Some employees were made what was purported to be offers of employment by child care facilities associated with

Nesha and Ngaire at MRCCC, Top Ryde or Kenthurst. The offers from MRCCC were along the following terms,

“Thank you for interviewing with Ngaire and Mel about a role at Midson Road Child Care Centre Pty Ltd.

We would like to offer you a role at the service.

• Position…
• Award…
• Start Date: 16 January 2017
• Rate of pay…
• Days/Hours of work…

Please indicate below if you will be accepting the role or declining the offer. As you can appreciate the sooner we know where we are placing our staff, the better, so that we can offer the position to one of the other team members if you do not wish to take up the offer. As such, if you could please respond by Monday, 21 November 2016 at the latest.

Following your acceptance of the offer you will be provided with a letter of employment and position description which you will need to sign as further acceptance of the role.”

(This last sentence was a cause for argument in the proceedings).

r) The NCCC closed on 23 December 2016. All employees had their employment terminated on that date by reason of their positions being made redundant.

s) Following the cessation of their employment with Norwest all of the employees commenced employment with a new employer either immediately or shortly thereafter. The dispute between them and Norwest is about whether Norwest obtained that employment for each of them.

Statutory framework
[10] The redundancy pay provided by s.119 is as follows:

“119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work”:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

[11] Section 120 of the FW Act provides as follows:

“120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:

(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

Authorities – “obtain”
[12] In Hunt Energy v Mineral Company Australia Pty Ltd 13 Commissioner Hampton usefully identified the primary authority on what it means to “obtain” alternative employment and the task to be performed by the Commission,

“[15] The immediate issue is whether Hunt Energy obtained the alternative employment for Mr Thomas within the meaning of the FW Act. The history and intent of this element of the legislation 14 is in effect explained by the Full Bench of the Australian Industrial Relations Commission in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 198215 in the following terms:
“We do not wish to prevent an employer making an application to be exempted from the general prescription pursuant to this decision in cases where an employer obtains acceptable alternative employment for an employee but we would point out that, in our decision, severance payments are not made for the purpose of assisting employees to find alternative employment. Where such an application was made it would be important to consider whether previous service with the previous employer was recognized as service with the new employer.

The word "obtains" does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of affecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.
It follows that "obtain" must be given some lesser meaning. The Shorter Oxford Dictionary (third edition, revised) provides as its relevant meaning, the definition of "obtain" as "to procure or gain, as the result of purpose and effort". It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.
This approach is supported if the passages quoted above from the Termination, Change and Redundancy Case are read in conjunction with what was said under the heading “assistance in seeking alternative employment”. There the Commission records the FW Act objective of achieving award provisions “designed to ensure that the employer assists the employee to find alternative employment”.
Reliance was placed by the FW Act on a decision of the South Australian Industrial Commission in the Milk Processing and Cheese Etc Manufacturing Case:

“where it was decided that there should be included in any detailed prescription on redundancy an obligation on the employer actively to offer, or to make reasonable endeavours to procure, suitable alternative employment for redundant employees.”

Dealing with the circumstances in which the general prescription the Full Bench was awarding might be departed from, the decision in the Termination, Change and Redundancy Case indicates that particular regard was paid to, inter alia, the S.A. Milk Processing and Cheese Etc. Manufacturing decision. Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.” 16
[16] On that basis, it is necessary to consider whether Hunt Energy was the strong, moving force behind the creation of the available opportunity subsequently taken up by Mr Thomas. This is not an absolute test but rather one that needs to be realistically assessed in the particular circumstances of each case.
[17] At its highest, Hunt Energy contacted Harness, confirmed that redundancies would be occurring, advised that this may include Mr Thomas and provided a reference for him. Further, in advising Mr Thomas of his redundancy, it also referred to the possibility of employment with Harness. These elements assisted with the alternative employment ultimately found by Mr Thomas.
[18] Hunt Energy did not however make any arrangements for contact between Mr Thomas and Harness, arrange for an interview or the supply of his résumé, or have any apparent role in the formation of the new employment contract. There is also no evidence that any transitional arrangements were made or proposed by Hunt Energy in relation to the new employment. Although not all of these would need to be present to meet the criteria of obtaining the new employment, they are indicative of the kind of role envisaged by the s.120(1)(b)(i) of the FW Act.
[19] The background was certainly set by Hunt Energy. However, based upon the evidence before the Tribunal, in the end, Mr Thomas made the direct approach to Harness, supplied his résumé and in effect, obtained the new employment.
Conclusion
[20] On balance, I am not persuaded that Hunt Energy obtained the new employment for Mr Thomas within the meaning of s.120(1)(b)(i) of the FW Act.
[21] Accordingly, there is no basis to consider the reduction in the redundancy payments provided by s.119 of the FW Act and this application is dismissed.”

[13] The approach in Derole Nominees was approved by a Full Bench of this Commission in Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd, 17

“[42] The question of what is required by the word “obtains” was considered by the Full Bench in Derole Nominees. It found:

“The word ‘obtains’ does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.
It follows that ‘obtain’ must be given some lesser meaning. The Shorter Oxford Dictionary (3rd ed revised) provides as its relevant meaning, the definition of ‘obtain’ as ‘to procure or gain, as the result of purpose and effort’. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.” 20 [citations removed]

and

“Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to ‘obtain’ alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.”

[43] In Datacom Vice President Lawler also expressed the view that the word “obtains” in the context of s.120 should be given a very broad interpretation.
[44] In Allman v Teletech International Pty Ltd, Marshall J considered whether Teletech International Pty Ltd (Teletech) had been “able to arrange alternative employment” which appeared in provisions for relief from the obligation to pay redundancy payments within relevant workplace agreement, upon its employees being offered employment by Telstra upon taking over a contract formally held by Teletech. His Honour considered the Full Bench decision in Derole Nominees, finding that “[t]here is no material difference between obtaining alternative employment and being able to arrange it.”
[45] Justice Marshall found that Teletech assisted its employees to apply for jobs with Telstra, had active involvement in the transition of the employees to work with Telstra, met with Telstra to discuss the possible employment of the employees by Telstra and secured a commitment from Telstra that Telstra would give all redundant Teletech employees the opportunity to apply for employment with Telstra. He found:

“Teletech was not, however, a strong moving force towards the creation of the available opportunity. The available opportunity arose because Telstra was to perform functions formerly performed for it by Teletech. Telstra required staff. It made sense for it to approach Teletech staff. Teletech did not secure the offer of a job for Teletech staff with Telstra. As counsel for the applicants submitted, Teletech arranged an opportunity for the employee applicants to participate in a recruitment process undertaken by Telstra.”

[46] Whilst accepting that Teletech brought the employees and Telstra together and that Teletech’s conduct was one of the factors that brought about the employment, Justice Marshall found that it did not mean that Teletech was able to arrange the employment, finding that Teletech facilitated its staff applying for jobs with Telstra, competing on their merits for the available positions. His Honour found that:

“The encouragement and facilitation of a process is not the same as doing everything possible to ensure a result. Arranging alternative employment means bringing about that employment should the employee choose to accept it. Anything short of that, such as competing with competitor applicants (albeit limited to two categories of applicant: existing Telstra and Teletech employees) does not meet the test provided by the relevant sub-clause in the AWAs.”

[14] In FBIS the Full Bench held that the employer had not “obtained” other acceptable employment. Consequently, it granted permission to appeal, upheld the appeal and quashed the decision of the Commission member at first instance. 18 On a rehearing the Full Bench dismissed the s.120 application.19

[15] FBIS International Protective Services (Aust) Pty Ltd then made an application for judicial review to the Full Court of the Federal Court in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia 20 (FBIS Fed Crt). The Full Court of the Federal Court found no jurisdictional error on behalf of the Full Bench of the Commission and dismissed the application for judicial review. It made the following observations about the meaning of “obtains”,

“8. On these facts, the question for the Full Bench was whether the Commissioner at first instance had been in error to conclude that the applicant had obtained acceptable alternative employment for the 49 employees within the meaning of s 120(1)(b)(i) of the FW Act. It held that he had been. In reaching an understanding of the meaning of “obtains”, the Full Bench referred to earlier decided cases, both in this court and in the Commission’s predecessor tribunals, under analogous provisions. Those provisions were not, however, statutory ones, and the decision-making context in which the cases arose was somewhat different from that which now exists under s 120 of the FW Act. Before referring to the cases, it is convenient to consider some of that context.
9. The origins of the provision now under consideration are to be found in the decision of the Full Bench of the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (1984) 8 IR 34. It was then that it was decided to introduce a general severance pay entitlement under federal awards for employees whose employment was terminated on account of redundancy. An argument had been advanced on behalf of employers that such an entitlement would not be appropriate where the employee concerned had secured alternative employment. Of this argument, that Commission said (8 IR at 75):

We do not wish to prevent an employer making an application to be exempted from the general prescription pursuant to this decision in cases where an employer obtains acceptable alternative employment for an employee but we would point out that, in our decision, severance payments are not made for the purpose of assisting employees to find alternative employment. Where such an application was made it would be important to consider whether previous service with the previous employer was recognized as service with the new employer. However, we would make it clear that we do not envisage severance payments being made in cases of succession, assignment or transmission of a business.

10. Subsequently, the Full Bench in the Termination, Change and Redundancy Case sat again to consider the terms of an amendment to the Metal Industry Award 1984 that should be made to reflect its decision: (1984) 9 IR 115. After hearing further argument, the Full Bench ruled that the following provision should be included in the amendment to that award (9 IR at 135):

… An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee.

This provision did not prescribe an objective state of affairs the existence of which would disentitle an employee from his or her severance pay under the award as amended. Rather, it stated a ground upon which the Australian Conciliation and Arbitration Commission might vary the entitling provision in a particular case. It would have been for that Commission to decide whether the employer had obtained acceptable alternative employment, and if so, using its industrial judgment, what should be done about it. What was involved in the notion of “obtains” would, in effect, have been rolled up into the merits of the case.
11. A provision in terms similar to those referred to above came before a Full Bench of the Industrial Relations Commission in Re Clothing Trades Award 1982(1) (1990) 140 IR 123. In that matter, an employer had applied for relief from the operation of the standard severance pay provision upon the ground that it had taken steps to obtain acceptable alternative employment for employees whose jobs had become redundant. A single Commissioner had, it seems, taken the view that “the failure of the employees to accept the employment meant that necessarily the alternative employment was unacceptable” (140 IR at 126). The Full Bench held that this was in error. It proceeded to deal with the issues arising itself. It considered what was meant both by “obtains” and by “acceptable alternative employment”. In the present case, we are concerned only with the first of these terms.
12. In Clothing Trades, the Full Bench said (140 IR at 127-128):

The word “obtains” does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.
It follows that “obtain” must be given some lesser meaning. The Shorter Oxford Dictionary (3rd ed, revised) provides as its relevant meaning, the definition of “obtain” as “to procure or gain, as the result of purpose and effort”. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.
This approach is supported if the passages quoted above from the Termination, Change and Redundancy Case are read in conjunction with what was said under the heading “assistance in seeking alternative employment”. There the Commission records the ACTU objective of achieving award provisions “designed to ensure that the employer assists the employee to find alternative employment”.
Reliance was placed by the ACTU on a decision of the South Australian Industrial Commission in the Milk Processing & Cheese Etc Manufacturing Case (1980) 47 SAIR (Pt 1) 939 Print 1.97/1990:

… where it was decided that there should be included in any detailed prescription on redundancy an obligation on the employer actively to offer, or to make reasonable endeavours to procure, suitable alternative employment for redundant employees.

13. Notwithstanding this treatment of what was meant by “obtains”, the outcome in Clothing Trades itself turned not upon whether alternative employment which had been accepted by a particular employee had been obtained by his or her former employer. This was, it seems, treated as a given. The case was concerned only with “the 18 employees who did not take up any offer available to them from the other employers” (140 IR at 125). The outcome turned on whether the availability of offers from other employers had been clearly communicated to each affected employee and, if so, whether the employee concerned had been reasonably justified in rejecting it. In the result, the outcome was not the same for each of these 18 individuals.
14. An analogous, although not identical, provision came before the court in Allman v Teletech International Pty Ltd (2008) 178 IR 415. The employees whose jobs became redundant in the facts of that case were parties to Australian Workplace Agreements made under the Workplace Relations Act 1996 (Cth). The severance pay provisions in those agreements contained provisos that they would not apply where the employer was “able to arrange alternative employment with another employer that is comparable in wages, terms and conditions of current employment” (178 IR at 417 [6]). As Marshall J pointed out (178 IR at 417 [9]), “[r]ather than providing that [the employer] must approach an industrial tribunal to be exempted from paying severance pay, the relevant AWAs provide inbuilt exemptions to the severance pay clause ….”
15. Having referred to Clothing Trades, Marshall J said (178 IR at 418 [14]):

In the relevant AWAs of the employee applicants, the applicable sub-clause refers to the employer being “able to arrange alternative employment.” There is no material difference between obtaining alternative employment and being able to arrange it. If an employer who is about to make an employee redundant said to the employee, “I have obtained alternative employment for you” or said “I have been able to arrange alternative employment for you”, the employee would understand the employer on each occasion to be saying that it has found another job for the employee. The employee may not choose to take up the job, but it must be one that is there for the taking if the employee chooses to take it.

16. His Honour then turned to the facts of the case before him, and said (where the previous employer was “Teletech” and the new employer was “Telstra”) (178 IR at 418-419 [15]):

Teletech assisted its soon to be redundant employees to apply for jobs with Telstra. Teletech had active involvement in the transition of the employee applicants from work with Teletech to work with Telstra. Immediately after Telstra advised Teletech that it would not renew its contract with Teletech for the provision of services at Moe, representatives of each company met to discuss the possible employment of the call centre employees by Telstra. Teletech secured a commitment from Telstra that Telstra would give all Teletech’s employees at the Moe call centre the opportunity to apply for employment with Telstra and be available to be recruited by Telstra. Teletech was not, however, a strong moving force towards the creation of the available opportunity. The available opportunity arose because Telstra was to perform functions formerly performed for it by Teletech. Telstra required staff. It made sense for it to approach Teletech staff. Teletech did not secure the offer of a job for Teletech staff with Telstra. As counsel for the applicants submitted, Teletech arranged an opportunity for the employee applicants to participate in a recruitment process undertaken by Telstra.

His Honour’s reference to the previous employer not having been “a strong moving force towards the creation of the available opportunity” was, of course, based upon what the Full Bench had said in Clothing Trades.
17. Later in his reasons, Marshall J said (178 IR at 419 [18]) that “[a]rranging alternative employment means bringing about that employment should the employee choose to accept it.”
18. Returning to Clothing Trades, the actual outcome in that case demonstrated that there could be cases in which an exemption was granted from the operation of the standard award provision notwithstanding that an alternative employment relationship did not come into existence at all. In its reasons, the Full Bench characterised an outcome of this kind as implying a particular connotation of the word “obtains”. However, we would regard such an outcome as an instance of the reality that any new state of employment could only come about by the agreement of the new employer and the employee concerned. In this respect, we agree with Marshall J, in Allman, that to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice. If the employment is not accepted, the question whether that employment was “acceptable” will then arise.
19. With respect to the Full Bench in Clothing Trades, we consider it to be a distraction to introduce the issue of whether the previous employer was “a strong moving force towards the creation of the available opportunity”. To proceed in that way would be to introduce unnecessary complications into the connotation of an ordinary word in the English language. If someone comes into possession of something, either literally in the case of a chattel or figuratively in the case of a new legal relationship or other incorporeal benefit, we cannot understand how the question whether he or she “obtained” that thing would be answered differently depending on whether he or she, or someone else on his or her behalf, had been a “strong moving force” in the events which led to that possession.
20. With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.
21. It did become the subject of legislation with the enactment of the FW Act in 2009. In the way that s 120 is drafted, the matters set out in subs (1) are, as the Full Bench in the present case recognised, jurisdictional facts for the exercise of the discretion arising under subs (2). As such, whether the applicant obtained acceptable alternative employment is now directly justiciable in this court in an application of the present kind. It is alleged that the Full Bench wrongly declined jurisdiction under s 120. If that allegation were a good one, mandamus would be the appropriate remedy. In our view, however, the allegation should not be accepted.
22. The 49 employees did obtain employment with ACG. It seems to be uncontentious that this employment was acceptable. But, on the facts referred to earlier in these reasons, we would not find that the applicant obtained that employment for those employees. It may have facilitated the opportunity for them to apply for employment with ACG, but what it obtained for them was something less than offers of employment which they could accept or decline as a matter of choice.”

[16] Having reviewed the authorities, the task to be performed by the Commission (and the one I have applied in the present matters) is to assess each application by applying the following rules,

a) “obtains” does not mean actually obtain in the fullest sense (Derole),

b) “obtains” must be given some lesser meaning (Derole),

c) do not impose an absolute test on the employer’s ability to “obtain” alternative employment (Derole),

d) focus on the action of the employer that causes the alternative employment to become available to the redundant employee (Derole),

e) there is no material difference between “able to arrange” and “obtain” (Teletech),

f) query whether the employer brought about the employment should the employee choose to accept it (Teletech),

g) it is not enough for the employer to,

i. encourage or facilitate a process,

ii. secure (from the potential new employer) an opportunity to apply or to participate in a recruitment process, and

iii. bring the employee and the potential new employer together (Teletech),

h) the test is to be “realistically assessed in the practical circumstances of each case” (Hunt Energy),

i) obtain employment means “to procure another employer to make an offer of employment which the individual may or may not accept as a matter of his or her choice” (FBIS),

j) the employment “must be the result of the conscious, intended acts of” the employer (FBIS Fed Crt), and

k) the exercise does not require asking if the employer was the “strong moving force towards the creation of the opportunity” (FBIS Fed Crt).

[17] For the avoidance of doubt, I do not discern in the decision of the Full Court the establishment of a “higher bar” in relation to the question of “obtains” than that which had previously been required by the jurisprudence. While the Full Court found the phrase “a strong moving force” a distraction, it did not substitute (in place of the established test) a new or higher standard than that which previously existed.

Authorities – “other acceptable employment”

[18] In Spotless Services Australia Limited t/as Alliance Catering 21 Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission,

“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.
This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.
…
The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)

[61] In Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901 (‘Oscar Oscar’), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:

‘[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.
[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.’ (my emphasis)

[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:

‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.
…
[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.’

[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:

‘[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group.The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.
[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’

[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461, I said at para [183]:
‘[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:
• rate of pay;
• hours of work;
• work location;
• seniority;
• fringe benefits;
• workload;
• job security;
• continuity of service;
• accrual of benefits;
• probationary periods;
• carer’s responsibilities; and
• family circumstances.
This list is not exhaustive. There may be other relevant factors.’
[65] The above decisions have some common features, including:
• The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.
• ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.
• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
• An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.
• The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.
• There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”

[19] In deciding the present matter I adopt the approach set out by the Deputy President.

Applicant’s general submissions

[20] The applicant submitted that it should not be required to make the redundancy payments in full to any of the respondents due to the operation of s.120(1)(b)(i). The applicant relied upon the decision in Derole. It submitted that it had either obtained suitable work for the respondents or, alternatively, did all it could to obtain work for respondents who acted in a manner to rebuff the efforts of the applicant to assist in finding alternative employment.

[21] The applicant submits that the Commission should apply s.122(3) of the FW Act. That section disentitles an employee to a redundancy payment if the employee rejects an offer of employment made to them by a new employer which are on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than the employee’s terms conditions prior to termination and the new employer recognises the employee’s service with the previous employer. In none of the letters of offer made by the applicant to any of the respondents was their continuity of service provided for. For this reason the Commission, as presently constituted, rejects the submission that s.122(3) of the FW Act applies in respect of any of the respondents.

[22] Turning to whether the applicant obtained employment for the respondents the applicant submitted that:

a) on 16 November 2016 all staff at the centre were informed that the centre was to close down and how the centre would take specific steps to find new and suitable employment. Staff were individually interviewed as soon as practically possible to find out what their individual needs were,
b) Kylie Weller’s only job was to do whatever was needed to help find staff new work. Evidence has been adduced in regard to her considerable actions to individually tailor staff resumes, find out what sort of work employees were looking for and tailor job interviews accordingly, set up interviews for terminated employees, get feedback from employers on interviews et cetera, and
c) in addition to the actions of Ms Weller, a specific set of staff (Group 2) were immediately offered jobs of a similar nature to those they held at centres that the directors of Norwest also had an interest in.

[23] The applicant’s individual submissions in relation to the respondents are dealt with in the schedules below. The schedules are as follows:

• Schedule 1: Cathy Paul,
• Schedule 2: Emily Grinter,
• Schedule 3: Emma Talbot,
• Schedule 4: Jessica Whipps,
• Schedule 5: Matthew Summons,
• Schedule 6: Kalesita Kalhau,
• Schedule 7: Siobhan Robinson,
• Schedule 8: Tamara Carter,
• Schedule 9: Dannielle Johansen,
• Schedule 10: Fernanda Batista,
• Schedule 11: Naoko Hisada, and
• Schedule 12: Bryn Williams.

[24] Specifically, in relation to the Represented Six the applicant submitted that they were all made offers, but rejected them and therefore should be deprived of a redundancy payment. The applicant submitted that it did all it could to provide acceptable alternative work for the respondents.

[25] Specifically in relation to Bryn Williams and Matthew Summons the applicant submitted that there was “evidence adduced to show that despite the attempts to place [them, they] were in fact attempting to avoid assistance, not cooperating with [Norwest], failing to respond to communications seeking to help, failing to let Ms Weller know what sort of work or placements [they] wanted, not cooperating with attempts to place them in positions but instead focusing on issues solely related to a redundancy payment.” 22 The applicant submitted that “the evidence points to the fact that this group communicated and compared notes in regard to maximising their redundancies and reducing any assistance they got from Norwest knowing full well they were in an industry that had a plethora of jobs available if they held out.”23

[26] The applicant also submitted that:

a) “the purpose of redundancy is to compensate employees whose job has become redundant, for lost personal leave, long service leave and inconvenience and hardship imposed on the employee such as loss of security of employment and other kinds of losses.” 24
b) “redundancy is not a payment made to employees who refuse to cooperate with employers seeking to find them acceptable employment and who seek a pay-out knowing suitable employment awaits them anyway” because of the plethora of jobs available in the childcare industry. 25
c) “there is a point where the duty of the employer comes to an end. Should and employer be penalised because an employee refuses to cooperate with every effort the employer makes to assist a newly terminated employee? The duty put in place by s.120 is not absolute.” 26 In this regard the applicant drew an analogy with an employer’s occupational health and safety obligations, submitting that “an employer under s.120 of the FW Act cannot be held to have a duty to obtain a job for a terminated employee who will not cooperate with the employer’s efforts to assist as compliance with such a duty is impossible.”27
d) “the applicant’s motives and actions are evident not only in making certain staff a number of immediate offers… but also in the fact that the employer put in place a dedicated experienced outplacement recruiter in Kylie Weller to find jobs for any and all staff not immediately placed by the applicant.” 28

[27] In specifically addressing FBIS Fed Crt the applicant submitted that,

a) “the factual context of the case and [the present case] are different. In FBIS Fed Crt, the employer contacted just one employer, Asciano. It gave them details of the newly unemployed staff and discussed the issue of potential employment of these staff. Asciano then asked those staff to apply for positions, some were eventually employed, others were not. None of those employed had their service or accrued entitlements recognised. The Full Court said in those circumstances FBIS had only facilitated the opportunity for employment,” 29

b) “The fundamental differences [in the present matter] are that Norwest specifically made offers to a number of staff, all of which we argue were acceptable employment in that the hours of work, pay levels, nature of employment, status, and job security were equal to or in some cases superior to their previous job.” 30
c) “The applicant then made available other offers such as those at Cressy Road, Midson Road, Top Ryde, Kenthurst and Young Scholars. It helped arrange interviews for staff even in areas such as diverse as Indigenous Training because the employee concerned had said they were looking at moving to that area.” 31
d) “In short, the applicant has made a dedicated and concerted effort to place all terminated employees, has paid out their leave entitlements and done everything it could to facilitate their new employment.” 32

[28] In answer to suggestions that the distance to the new jobs made them not acceptable alternative employment, the applicant relied upon the decision in Spotless 33 in submitting that, additional travel time of up to 1 hour and 40 minutes (for a return trip) or an additional travel time of 50 minutes (return) does not constitute a sufficient basis for refusing an offer of redeployment. The applicant also relied upon survey data suggesting that “people in Sydney had the longest commuting times in Australia and that on average Sydney-siders [spend] between 5-6 hours a week commuting.”34 The applicant submitted “with the greatest respect to the respondents, the job offers made to them that were rejected due to travel considerations did not contain travel of a similar or longer duration [than] this average Sydney-sider figure.”35

[29] In response to the submissions made on behalf of the Represented Six that the “offers” they received did not constitute an offer of employment because it required the employees take further action in terms of the offer, the applicant submitted that,

a) the “offers made by Ms Hutchinson [required] the employee to then fill in a tax file form, provide their birth certificate, proof of residency, their resume, a working with children check, super details, immunisation form, sign confidentiality document, a child protection document and release form re working with special needs children, read the Fair Work Information Statement, a certified copy of their qualifications and read the annual leave policies. This does not mean there [was] no offer, simply that these essential administrative actions need[ed] to occur for the job to proceed.” 36
b) “Providing these does not invalidate the fact that the Letter offers specific employment with a specific firm stating their award and their level within that award that indicates their position and duties.” 37

[30] Finally, Norwest denied that the employees had been denied continuity of service. It submitted that,

a) “Most child care centres have a shut-down period around Christmas between 2-3 Weeks. Stating that there is no continuity of service is inaccurate. All Norwest staff were notified of the annual leave shutdown in which they would have been required to take forced leave. Instead Norwest paid them out for this period.” 38
b) “Moreover all employees were also offered employment at Norwest Child Care Centre over the break from 23/12/2016 through to 16/1/2017. This was repeatedly communicated. A few employees took Norwest up on this offer. We can only assume the others did not because they had planned breaks over this period or simply did not want to work during this period.” 39
c) “… the applicant has allowed for the fact that where non continuity of service has been transferred to the new employer the applicant has reduced its claim in direct relation to the amount of personal leave that [each] respondent may have accrued.” 40

[31] The applicant’s submissions in relation to continuity of service are novel, but not persuasive. None of the offers of employment from the new employers unequivocally provided for continuity of service. The fact that, because employees had their annual leave paid and as such, would have been in no lesser financial position had their employment continued during the shut-down employment, does not answer the continuity of service point. The Commission, as presently constituted, finds that no employee was provided with continuity of service in their new employment.

General submissions on behalf of the Represented Six

[32] On behalf of the Represented Six it was submitted that,

“6. The purpose of redundancy pay, in the words of von Doussa J in Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 331, is twofold, being to:

…provide a payment as compensation for the loss of non-transferable credits and entitlements that have been built up through length of service such as sick leave and long service leave, and for inconvenience and hardship imposed by the termination of employment through no fault of the employee… The inconvenience and hardship includes the disruption to an employee’s routine and social contacts and the competitive disability to long term employees arising from opportunities foregone in the continuous service of the employer.

7. In circumstances where one of the two purposes of redundancy pay is to compensate an employee for the loss of non-transferrable credits and entitlements, then whether or not the alternative employment for the purposes of s 120 of the FW Act includes recognition of the previous service is an important factor in determining whether or not the alternative employment is “acceptable alternative employment”. Indeed, in Termination, Change and Redundancy Case (1984) 8 IR 34, the case which forms the origins of s 120 of the FW Act, the Australian Conciliation and Arbitration Commission held as follows (with emphasis added):

8. In the present Application, none of the Employees were offered employment by a prospective employer who was willing to recognise the Employees’ service with the Employer. In such circumstances, even were the Commission to hold that the Employer obtained acceptable alternative employment for the Employees, it is submitted that the Commission should not reduce the redundancy entitlements to nil, as it is appropriate that the loss of service be compensated even if such employment was obtained.”

[33] The representatives of the Represented Six then correctly referred to the authorities relating to “obtained” and “acceptable”. However, it was submitted that this was “a high threshold”. 41 It seems to be unnecessary to characterise the test as a “high” one or otherwise and I decline to do so. The test is what it is and summarised in para [16] above.

[34] In terms of the efforts of Norwest in the present matter it was submitted 42 that,

“17. It is submitted in the present case, the Employer did nothing more than encourage the Employees, and facilitate their own obtainment of employment for themselves, to the extent that it did anything at all. It did no more than the employer in Allman.
18. On its own case, the Employer has not done enough to satisfy the Commission that it obtained employment for the Employees; the extent of its submissions in this respect is that the Employees were “provided with support through an outplacement service, Ms Kylie Weller, to assist them to find suitable alternative employment” (emphasis added). The Employer has conceded that, far from procuring offers of employment for the Employees, it did no more than provide them with support for them to obtain their own acceptable employment. The Application in respect of the Employees therefore cannot satisfy the first limb of the test under s 120 of the FW Act, and accordingly must fail.
19. Further, on its evidence (much of which is not accepted), the Employer did not do enough to be said to have “obtained” employment for the Employees (excluding matters relating to the Midson Road Child Care Centre and Top Ryde Early Learning, which are dealt with below). The Employer’s evidence suggests that it:

a. introduced the Employees to Ms Kylie Cranswick to offer outplacement services, who would help the Employees to improve their CVs so that they could find another role within the sector;
b. provided some Employees with print outs of positions that were being publicly advertised;
c. arranged for some Employees to attend interviews; and
d. sought post-interview feedback from centres that the Employees had interviewed at (though apparently not with the intention of passing that information onto the Employees to assist them in improving their interviewing techniques, but as evidence in support of the Application).

None of the above come close to constituting the procuring of an offer of employment. Where the Employer arranged an interview for an Employee, but the Employee was the subject of a normal recruitment process based on merit, and the prospective employer was simply seeking the best possible candidate wherever sourced, the Employer will not have obtained employment for the Employee; the Employee will have obtained it themselves, based on their own suitability and competency. At best, the Employer engaged in facilitation.”

[35] In terms of whether the offers were “acceptable” it was submitted 43 that,

“20. The onus is on the Employer to demonstrate that any employment it could be said to have “obtained” for the Employees was “other acceptable employment”.
21. In addition to the importance of considering whether the new employer is recognising the personal service of the employee with the old employer, relevant factors include:

a. pay levels;
b. hours of work;
c. seniority;
d. fringe benefits;
e. workload and speed;
f. location and time taken to travel to work;
g. job security (including whether or not the employee, in the new position, would be subject to a probationary period); and
h. entitlements arising under a policy, procedure or process.

22. It is submitted that even had the Employer actually obtained employment for the Employees, the employment was not “acceptable employment” for the purposes of the second limb of the test under s 120, for the reasons set out in respect of each individual Employee…”

[36] In answer to what was purported to be an offer of employment from MRCCC it was submitted 44 that,

“24. Whilst ostensibly offers of employment which might otherwise satisfy the first limb of the s 120 test, it must be noted that each “letter of offer” ended with extremely unusual wording to the following effect (noting that there is some slight variation in some of the letters, and with emphasis added):

Following your acceptance of the offer you will need to come in and meet the director where you will be provided with a letter of employment, position.

25. It is unclear why it was necessary to sign the letter of offer, before being able to see such documentation. Ordinarily, a letter of offer would constitute the employment contract, or would annex terms and conditions to cumulatively form the employment contract. However, the letters appear to suggest that the further signing needed to occur before contractual acceptance of the “role” was effected, as this would be the “further acceptance” which was needed. There are two consequences:

a. the relevant Employees were not in a position to determine whether the employment offered was acceptable, as they did not know the full terms of the offer to the extent that further terms were contained in the letter of employment, position description, and “various” other forms; and
b. in terms of principles applying to contracts, the “letter of offer” did not at law constitute an offer, the acceptance of which would result in employment. In fact, employment was subject to a condition precedent, being further agreement in relation to what were presumably important terms of the employment, which would be contained for example in the letter of employment and position description.

26. The Employer therefore did not “procure offers of employment” with respect to these centres; they procured letters of offer which set out only basic terms, and the acceptance of which did not bring about employment. The real offers of employment would be contained in the letter of employment and position description.
27. Further, the letters of offer provided that the new employment would commence only on 16 January 2017, more than 3 weeks after the termination had taken effect. The relevant Employees would therefore be unemployed throughout this period; in such circumstances, it cannot be said that the offer constituted a transition into employment as if the employment were on-going, as Marshall J contemplated in Allman. It therefore was not acceptable employment, even if it was obtained by the Employer for the relevant Employees.”

[37] In the final submission 45 filed on behalf of the Represented Six it was further submitted (in relation to the purported offers) that,

“5. The standard form employment contracts of both Top Ryde and Midson Road are far more extensive than the MRTR Letters, and contain contractual terms that go well beyond the summary of key terms provided in those letters. For example, the MRTR Letters do not contain the following significant provisions which are to be found in the contract templates: probationary periods, workplace health and safety terms, terms as to anti-discrimination and harassment, leave provisions, termination provisions, and confidentiality provisions. The contract templates also include entire agreement clauses, which would exclude the MRTR Letters from having any effect.
6. In the circumstances, for the purposes of contractual law, the MRTR Letters fell fairly and squarely within the third category of the three categories set out in Masters v Cameron (1954) 91 CLR 353 (noting a fourth was added by the judgment of Baulkham Hills Private Hospital Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622). The third category arises where the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. The Applicant has all but conceded this matter in its written submissions at paragraph [93], by accepting that what it refers to as “administrative actions” “need to occur for the job to proceed”. Plainly there would have been no employment until the contract had been signed, regardless of whether or not the MRTR Letters were accepted. Consequently, the MRTR Letters were not offers of employment. They were offers to reach agreement at a subsequent time, subject to as yet unknown terms and conditions contained in two as yet unseen contractual documents.

….

14. The MRTR Letters, as a matter of law, cannot be regarded as offers of employment, which the individual may or may not accept as a matter choice. An offer of employment must naturally be a contractual offer, such that its acceptance would therefore bring about a relationship of employment. The MRTR Letters, being nothing more than an offer to reach agreement at some subsequent time and subject to further unknown terms, was one step before an offer of employment being made which could be accepted or rejected as a matter of choice.
15. Further, for every role which was ultimately offered with respect to the Respondents (including, for thoroughness, the “offers” in the MRTR Letters, apart from the “offer” put to Mr Williams), the Respondents were required to attend interviews. As a matter of logic, the reason an employer conducts an interview is to assess the suitability of an employee for an available position, and to determine whether or not to offer them the same. The Applicant’s agent who was primarily involved in arranging interviews accepted this proposition.11 She also accepted that no offers were made until the Respondents had first attended interviews.12 In such circumstances, the conclusion to be reached is: the Respondents received offers of employment themselves, as a consequence of their performance in their interviews. This conclusion could only be displaced where the Applicant had done something between the interview and the offer to directly cause the offer to be made; there has been no evidence, or even suggestion, that this is the case.”

[38] In answer to the applicant’s submission that some weight ought to be placed on the employees’ lack of cooperation with the applicant’s efforts to secure them alternative work, it was submitted on behalf of the Represented Six that,

“7. Contrary to the Applicant’s understanding, s 120 of the FW Act does not confer a positive obligation or duty on any party, be it the employer or employee. Section 120 is in fact a mechanism by which, should an employer meet certain tests, the Fair Work Commission has a discretion to reduce the amount of redundancy pay, thereby relieving the employer of obligations it would otherwise owe its employees.
8. Section 120 does not confer any obligations on an employee. The threshold questions in s 120(1)(b) are not even remotely concerned with the conduct and actions of employees. The sub-section is concerned only with the actions of the employer. The section can only relevantly apply where the employer has done certain things; the actions of an employee can only possibly be relevant to the Commission’s discretion under s 120(2), which is exercisable only once the threshold matters in s 120(1)(b) have been satisfied. To have regard to an employee’s conduct in resolving those initial questions would be to read into s 120(1)(b) words which the legislature did not include, and which are not necessary to its interpretation.”

[39] In so far as it was said that the employment offered was not “acceptable” it was submitted that,

“21. In any event, the above does not entirely resolve the Respondents’ loss of continuity of service. For example:

a. the Respondents do not have the benefit of the unfair dismissal regime until they have completed the minimum employment period within the meaning of s 383 of the FW Act;
b. those Respondents who were not entitled to be paid an amount in lieu of long service leave as at the date of termination (not having reached 5 years of service), lost any accrual they had made with the Applicant, and were required to begin again; and
c. the Respondents are not entitled to parental leave under the FW Act until they have completed 12 months of employment with their new employers (see s 67 of the FW Act).

22. Had the Respondents become employees of either Midson Road or Top Ryde, they would have been unemployed for approximately 3 weeks. The mere fact that they were paid their annual leave upon termination, and would have been on annual leave during the close-down over this period, does not resolve this matter. The fact that they would have been unemployed during this period would mean that they would not be accruing any entitlements during the 3 week period, as would have been the case if they had merely been on annual leave during the close-down.
23. The Respondents also experienced a loss of job security as a result of the redundancies, and this is a “relevant and not unimportant factor”.19 For example, the evidence showed that had the relevant Respondents accepted the MRTR Letters, and consequent offers of employment, they would have been subjected to contractual probationary periods.

….

27. Nothing turns on the Applicant’s accusations of collusion (which in any event, are denied).. The Respondents are joined together as a sub-class of the total respondents by nothing more than the fact that they share the same representative in order that the legal costs of representation can be defrayed. One must wonder whether, had Laxon Lex’s clients been different, the Applicant’s allegations would have been tailored accordingly. In the circumstances as they are, one must wonder why the Applicant has not made its allegations against any other respondents, each of whom would have been present in the workplace whilst the Respondents were supposedly scheming.

5. On 23 November 2016 I sent Naoko an email with links to 2 more positions as a cook to look at and see what she thought.

6. On 28 November 2016 I sent applications for a cook at AirRoad, a Japanese delivery company, which was a job link that she found herself and wanted my help to apply for the role.

7. On 29 November 2016 I emailed Naoko another list of positions that she may be interested in.

8. On 30 November 2016 I sent Naoko’s resume to Rainbow Haven Child Care for a position as a centre cook.

9. Naoko was also offered an interview at Blacktown Road Children’s Centre around the same time but she declined this as she had decided she did not want to cook anymore.

10. On 14 December 2016 Naoko was also advised that a cook position had been advertised and was available at Kinderlin Childcare but she was not interested.

11. She was also offered the role at AirRoad on 30 December and has accepted the position.” 105

Respondent’s evidence and submissions – Naoko Hisada

[7] Ms Hisada did not participate in the proceedings. However, on 16 February 2017 she wrote to the Commission in the following terms,

“To be honest with you, I don’t know what to do. I was reading through all emails however I is very hard to understand the process for me.”

Consideration – Naoko Hisada
Was Ms Hisada “entitled to be paid an amount of redundancy” (s.120(1)(a))?

[8] It is common ground between the parties that Ms Hisada’s employment with Norwest came to an end because her position was made redundant.

[9] Consequently, the Commission, as presently constituted, is satisfied that Ms Hisada is entitled to be paid an amount of redundancy pay by Norwest because of s.119 of the FW Act. The requirement under s.120(1)(a) of the FW Act has been established.
Did Norwest “obtain” other employment for Ms Hisada (s.120(1)(b)(i))?

[10] The evidence of Ms Weller, at its highest, suggests Ms Weller encouraged Ms Hisada or facilitated a process through which Ms Hisada obtained employment. Ms Weller put Ms Hisada in contact with a number of employers, including the employer she ultimately ended up accepting work with.

[11] However, realistically assessing the practical circumstances in this matter the Commission, as presently constituted, is not satisfied that the employment Ms Hisada took up with AirRoad was as a result of the conscious and intended acts of Norwest. The actions of Norwest (through the conduct of Ms Weller) did not result in Norwest obtaining other employment for Ms Hisada.
Was the employment “acceptable” (s.120(1)(b)(i))?

[12] Having decided that Norwest did not obtain employment for Ms Hisada it is unnecessary to consider whether the employment with AirRoad was acceptable employment.

Conclusion – Naoko Hisada

[13] On balance, I am not persuaded that Norwest obtained the new employment for Ms Hisada within the meaning of s.120(1)(b)(i) of the FW Act.

[14] Accordingly, there is no basis to consider the reduction in the redundancy payments provided by s.119 of the FW Act and the application (C2016/7504) is dismissed.

[15] Norwest must pay Ms Hisada her full redundancy entitlement within 7 days of the date of this decision.

[16] An order to this effect will be issued with this decision.

Schedule 12 – Bryn Williams (C2016/7506)

Background – Bryn Williams

[1] The following background, particular to Mr Williams, was agreed between the parties 106:

a) On 19 March 2014 Mr Williams commenced employment with the applicant.

b) On 23 December 2016 Mr Williams’ employment ended by reason of his position having been made redundant.

c) Mr Williams had 2.77 years of service.

d) Mr Williams had 4.72 weeks break in service.

e) For the purposes of calculating his redundancy entitlement, Mr Williams had 2.676 years of service.

f) By reason of the new employer not recognising prior service with Norwest, Mr Williams would have lost 0.52 weeks of personal leave credits.

g) Following the cessation of his employment with Norwest, Mr Williams commenced employment with Kinda Mindi ELC doing the same work, for more pay, longer hours, with the same duties and seniority. Kinda Mindi ELC did not recognise Mr Williams’ service with Norwest.

[2] As outlined above, there is a dispute as to whether Norwest obtained the alternative employment for Mr Williams within the meaning of the FW Act and whether there should be any reduction in the amount of redundancy pay due to Mr Williams.

[3] Mr Williams is entitled to a redundancy payment of 6 weeks.

[4] Norwest seeks a 91.3 percent reduction in the level of redundancy payments provided by s.119 of the FW Act. That is, a reduction of 5.478 weeks and a proposed payment of 0.52 weeks redundancy. Essentially, Norwest seek to compensate Mr Williams for the personal leave credits lost by reason of him commencing new employment.

Applicant’s evidence and submissions – Bryn Williams

[5] The evidence of Ngaire was that,

“2. On 18 November 2016 I asked Kylie Weller who was coordinating all our interviews to arrange an interview at Midson Road Child Care Centre for Bryn Williams if he was interested in the role. We scheduled an interview for the next working day on Monday, 21 November 2016 at 10 AM. Unfortunately Bryn postponed the interview the day before on the grounds that he wanted to know what his redundancy entitlement would be prior to attending any further interview. I advised Kylie that I was available to interview Bryn at Norwest Child Care Centre at a time that was convenient for him….

3. When I saw Bryn at the service on 24 November 2016 I reiterated that I would like him to interview at Midson Road Child Care Centre as I had an ECT position still available. During this discussion he made it clear to me that he was not interested in pursuing looking for employment in the Early Childhood sector. …

4. At no point did Bryn accept my offer to interview at Midson Road Child Care Centre. As I still had a position available at Midson Road Child Care Centre for an Early Childhood teacher I made him an offer of employment on 8 December 2016. This offer was declined on 12 December 2016.” 107

[6] Ms Weller’s evidence was consistent with what she provided in respect of other employees of Norwest concerning the interviews she arranged or facilitated. This included facilitating an introduction for Mr Williams with Kinda Mindi. 108

Respondent’s evidence and submissions – Bryn Williams

[7] Mr Williams’ evidence was that

“5 on 16 November 2016 I attended a staff meeting at Norwest Child Care Centre. Nesha … requested all staff members attend this meeting, including those on maternity leave at the time. At this meeting, we were told words to the effect of “the Centre has been sold and will close for good on 23 December 2016. We brought on Kylie (Weller, a recruiter) to assist in the transition”.

6 All staff members were issued with letters. I received a type of letter that from conversations with other staff members I understood to be the group of employees for whom there was no alternative employment and other childcare centres operated by [Nesha and Ngaire].

7 On 17 November 2016 was advised of a position at Kinda Mindi … by a colleague at Norwest … Helen Molyneux.

…

18. After I learned I would be made redundant at Norwest … I began serious discussions with my brother about setting up an online automotive parts business. My brother currently works in the automotive industry and we both have an interest in the buying and selling of parts for older vehicles. We had previously discussed a business venture of this type, and have engaged in this activity on an informal basis for some time.

19. On or around the last week of November, I decided to proceed with the proposed automotive parts business with my brother. My partner had been offered an early return to work from maternity leave and was considering that option, and we felt we could manage financially since I can work from home and we would not be childcare.

…

25. Later in the day on 8 December 2016 I was hand delivered by [Nesha] a formal letter of offer for an ECT position at Midson Road, signed by Ngaire…

26. On 12 December 2016 I emailed … to decline the offer of employment at Midson Road, because I had already decided to pursue a business venture with my brother. … The Midson Road centre is also approximately a 40 minute drive from my house without traffic, and over an hour in traffic as Pennant Hills Road and the exit from Pennant Hills Road on the M2 Hills Motorway are bumper-to-bumper during peak periods.” 109

[8] It was submitted on behalf of Mr Williams that,

“47. Mr Williams received a “letter of offer” from Midson Road. He rejected the offer on the basis that he had already obtained alternative work, being the establishment of on automotive parts business with his brother.

48. In any event, employment with Midson Road was not acceptable employment. Midson Road is approximately a 40 minute drive from his home (without traffic) and along a toll road. The Employer did not obtain an offer for him for the reasons set out above regarding the unusual nature of the letter, and the prospective employment was not acceptable employment, being a significant distance from his home and involving expenses of both additional fuel and road tolls in order to commute.

49. Beyond the above, the Employer did no more with respect to Mr Williams than send him a list of available positions, and propose that he attend interviews. The Employer did not obtain employment for him. In the circumstances, the Application made with respect to his entitlements should be dismissed.” 110

Consideration – Bryn Williams

Was Mr Williams “entitled to be paid an amount of redundancy” (s.120(1)(a))?

[9] It is common ground between the parties that Mr Williams’ employment with Norwest came to an end because his position was made redundant.

[10] Consequently, the Commission, as presently constituted, is satisfied that Mr Williams is entitled to be paid an amount of redundancy pay by Norwest because of s.119 of the FW Act. The requirement under s.120(1)(a) of the FW Act has been established.
Did Norwest “obtain” other employment for Mr Williams (s.120(1)(b)(i))?

[11] Much of the cross-examination of the applicant’s witnesses and Mr Williams traversed their respective motivations. In essence it was put to Nesha and Ngaire that they were motivated to deprive employees of redundancy payments. In return Norwest essentially accused Mr Williams of doing all that he could to thwart Norwest’s attempts to find him employment so that he could maximise his redundancy payment. It was also put to Mr Williams that he effectively led the employee group to act in concert to facilitate the payment of their redundancies (which, like most employees, they treated as some sort of “right”).

[12] Although Mr Williams was less than candid in his evidence, having received advice from his mother (a lawyer) and the Fair Work Ombudsman, more likely than not, Mr Williams did explain to his co-workers that, if Norwest did not “obtain” alternate employment for them (but they secured it themselves), then they would receive their redundancy payment in addition to starting new employment; thus incurring no economic loss, but rather, a windfall gain. 111 He took a long time to honestly concede that he had conversations with his co-workers.112 When it was squarely put to Mr Williams that he had “worked out if you get a job with a non-related company where you wouldn’t have continuity of service, you get your redundancy”, Mr Williams replied “Well, it’s fairly obvious”.113 Why it took Mr Williams so long to make the obvious concessions is not clear. There is nothing in s.120 of the FW Act that requires the employees to work cooperatively with their employer who is looking to “obtain” alternative work for them.

[13] However, in any case, nothing much turns on the respective motivations of the parties.

[14] This battle between the interests of capital and the interests of labour is nothing new. It has been around since Adam (Smith) was a boy. Each side was entitled to try and maximise what was in their best interest. The outrage of both sides at the behaviour of the other was hypocritical. The conduct of both sides was reminiscent of the quote attributed by former Prime Minister Paul Keating to former NSW Premier Jack Lang that, “in the race of life, always back self-interest-at least you know it’s trying.”

[15] To the extent that Norwest was advised that the efforts of Ms Weller would be good enough to reduce its obligation to pay redundancies, it was bad advice. That is not a criticism of Ms Weller. She did the job that she was engaged to do. Ms Weller met with employees to understand what they might like to do next, she assisted employees with their resumes, and she arranged interviews for them. In one case she drove the employee to the interview and provided support to them. Ms Weller was genuinely motivated to assist the employees of Norwest to find employment. However, nothing in what she did could be said to have “obtained” employment for employees of Norwest.

[16] Putting aside the motivations of the parties, what I have focussed on is what actually happened.

[17] In relation to the employment accepted by Mr Williams with Kinda Mindi ELC, a realistic assessment of the practical circumstances of that matter leads to a conclusion that the employment at Kinda Mindi ELC was not the result of the conscious and intended acts of Norwest. Ms Weller did little more than encourage Mr Williams and facilitate a process. She brought Mr Williams together with prospective employers, but did no more. Consequently the Commission, as presently constituted, is not satisfied that Norwest obtained employment for Mr Williams with Kinda Mindi ELC.

[18] The same cannot be said in respect of the offer from Midson Road. For the reasons stated above in the substantive decision at paragraphs [35] – [48] the Commission, as presently constituted, is satisfied that Norwest obtained other employment for Mr Williams at Midson Road.
Was the employment “acceptable” (s.120(1)(b)(i))?

[19] The fact that an employee accepts the employment offer or rejects it is not the test of whether the employment is acceptable. It is an objective test.

[20] Mr Williams rejected the Midson Road offer because of the additional travel time it would involve. In all other respects the offer was acceptable. It was the same work, pay, hours and seniority. He also had in mind leaving early childhood work and opening a business with his brother.

[21] However, Mr Williams did lose continuity of service in commencing employment with Kinda Mindi ELC and the “question of whether previous service with the previous employer is recognised as service with the new employer, [is] relevant.” 114

[22] It was agreed between the parties that the additional travel time would be between 7 – 15 minutes each way. On any objective analysis the additional travel time was not onerous.

[23] The following passages from the decision in Spotless 115 are apposite,

“[76] …given that Ms Ilsley had the convenience of working three minutes from home for over ten years, I can understand her reluctance to accept a position that was not very close to her residence. However, balanced against these circumstances is the obvious fact that for the vast majority of Sydney-siders … such a convenience could only be dreamed about.

[77] Nevertheless, in my opinion, this case is a classic example where the subjective views of the employee must give way to the objective analysis of whether the alternative positions offered to Ms Ilsley were acceptable. So much so is apparent from the various authorities…”

[24] Another decision involving Spotless 116 is also apposite. In that matter Deputy President Sams held that,

“[20]… I return to consider whether the additional travelling time made the offer of reemployment objectively unacceptable alternative employment. While I sympathise with the extra inconvenience and cost the employees would have been required to accept, particularly in the context of their relatively low wages and part time hours, I am unable to conclude that a daily travel time of around 1 hour and 40 minutes return trip, or an additional travel time of 50 minutes return, constitutes a sufficient basis for refusing the offer of reemployment at Eraring.”

[25] Consequently, applying the authorities relating to “acceptable employment” and noting the only basis for rejecting the Midson Road offer was additional, but relatively inconsequential, travel time, the Commission, as presently constituted, is satisfied that, on an objective basis, the employment at Midson Road was acceptable.

Conclusion – Bryn Williams

[26] On balance, I am persuaded that Norwest obtained acceptable employment for Mr Williams within the meaning of s.120(1)(b)(i) of the FW Act.

[27] Accordingly, there is a basis to consider the reduction in the redundancy payments provided by s.119 of the FW Act.

[28] Norwest seeks a 91.3 percent reduction in the level of redundancy payments provided by s.119 of the FW Act. That is, a reduction of 5.478 weeks and a proposed payment of 0.52 weeks redundancy.

[29] In the exercise of my discretion I am satisfied that the basis for the reduction advanced by Norwest is fair in all the circumstances. The balance to be paid to Mr Williams will compensate him for the personal leave credits lost by reason of him commencing new employment with Kinda Mindi ELC (which did not recognise his service with Norwest).

[30] Norwest must pay Mr Williams 0.52 weeks redundancy within 7 days of the date of this decision.

[31] An order to this effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

1 Exhibit “A17” para 1.

2 Ibid.

3 Exhibit “A17” para 2.

4 Exhibit “A17” para 3.

5 Exhibits “A51” and “A52”.

6 Ibid.

7 Exhibit “A17” para 5.

8 Exhibit “A17” para 6.

9 Exhibit “A17” para 7.

10 Exhibit “A17” para 8.

11 A lot of cross-examination traversed whether Nesha and Ngaire knew Mulpha was going to issue a demolition notice before it was served on Norwest on 15 November 2016. Nesha and Ngaire denied actual knowledge of Mulpha’s intentions. However, by reason of the amendment to the lease affected by them on 9 November 2016 (at the request of Mulpha) and the fact that, at least by 9 November 2016, they were planning to make staff redundant, it must be that they were fairly certain that Norwest should expect a demolition notice. In this regard their protestations to their staff and the Commission that the demolition notice came ‘out of the blue’ are not to be believed. It was pure theatre on their behalf, albeit unconvincing. Why they felt the need to be less than honest on this point is a mystery.

12 Exhibit “A13”, paras 12 – 16.

13 [2012] FWA 7845.

14 In the Australian Industrial Relations Commission’s supplementary decision in the 1984 Termination, Change and Redundancy Case Print F7262, the Full Bench adopted a provision which closely reflects s.120(1)(b)(i). Accordingly, although in the context of an award application under earlier legislation, the apparent purpose of s.120(1)(b)(i) of the FW Act with respect to reductions based upon obtaining alternative employment remains the same.

15 Print J4414, 12 September 1990, per Peterson J, Marsh DP and Oldmeadow C.

16 Print J4414, p. 4 and 5.

17 [2014] FWCFB 6737.

18 [2014] FWCFB 6737, [67].

19 [2014] FWCFB 6737, [68].

20 [2015] FCAFC 90.

21 [2016] FWC 4505.

22 Exhibit “A50” para 42.

23 Exhibit “A50” para 55.

24 Exhibit “A50” para 61.

25 Exhibit “A50” para 62.

26 Exhibit “A50” para 64.

27 Exhibit “A50” para 67.

28 Exhibit “A50” para 69.

29 Exhibit “A50” para 79.

30 Exhibit “A50” para 80.

31 Exhibit “A50” para 81.

32 Exhibit “A50” para 82.

33 [2013] FWC 4484.

34 Exhibit “A50” para 91.

35 Exhibit “A50” para 92.

36 Exhibit “A50” para 93.

37 Exhibit “A50” para 94.

38 Exhibit “A50” para 100.

39 Exhibit “A50” para 101.

40 Exhibit “A50” para 104.

41 Exhibit “R21”, para 13 and Exhibit “R22”, para 12.

42 Exhibit “R21”.

43 Exhibit “R21”.

44 Exhibit “R21”.

45 Exhibit “R22”.

46 Exhibit “A54”.

47 Exhibit “A38”, para 5.

48 Exhibit “A39”.

49 Document 7482-KW-1.

50 Exhibit “A39”, para 7.

51 Transcript PN3510.

52 Exhibit “A55”.

53 Exhibit “A7”, para 5.

54 Exhibit “A21”.

55 Exhibit “R4”.

56 Exhibit “R21”.

57 Oscar Oscar Group Services Pty Ltd v Lees[2012] FWC 3901, [18].

58 [2016] FWC 4505.

59 [2013] FWC 4484.

60 Exhibit “A56”.

61 Exhibit “A34”.

62 Exhibit “A35”.

63 Exhibit “A36”.

64 Exhibit “R14”.

65 Exhibit “A57”.

66 Exhibit “A43”.

67 MFI-4.

68 Exhibit “A58”.

69 Exhibit “A9”.

70 Exhibit “A10”.

71 Exhibit “A22”.

72 Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901, [18].

73 [2016] FWC 4505.

74 [2013] FWC 4484.

75 Exhibit “A59”.

76 Exhibit “A44”.

77 Exhibit “A45”.

78 Exhibit “A60”.

79 Exhibit “A46”.

80 Exhibit “A47”.

81 Oscar Oscar Group Services Pty Ltd v Lees[2012] FWC 3901, [18].

82 [2016] FWC 4505.

83 [2013] FWC 4484.

84 Exhibit “A61”.

85 Exhibit “A4”.

86 Exhibit “A19”.

87 Exhibit “R2”.

88 Exhibit “R13”.

89 Oscar Oscar Group Services Pty Ltd v Lees[2012] FWC 3901, [18].

90 [2016] FWC 4505.

91 [2013] FWC 4484.

92 Exhibit “A62”.

93 Exhibit “A6”.

94 Exhibit “A20”

95 Exhibit “R3”.

96 Exhibit “R3”.

97 Oscar Oscar Group Services Pty Ltd v Lees[2012] FWC 3901, [18].

98 [2016] FWC 4505.

99 [2013] FWC 4484.

100 Exhibit “A63”.

101 Exhibit “A18”.

102 Exhibit “R1”.

103 Exhibit “A64”.

104 Exhibit “A48”.

105 Exhibit “A49”.

106 Exhibit “A65”.

107 Exhibit “A16”.

108 Exhibit “A23”.

109 Exhibit “R6”.

110 Exhibit “R21”.

111 Transcript PN1514.

112 Transcript PN1551.

113 Transcript PN1536.

114 Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901, [18].

115 [2016] FWC 4505.

116 [2013] FWC 4484.

Norwest Child Care Centre Pty. Limited. v Cathy Paul

[2017] FWC 3113

7 JUNE 2017

DECISION