[2021] FWC 4573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Davison
v
DHL Supply Chain (Australia) Pty Ltd
(U2021/2094)

DEPUTY PRESIDENT BOYCE

SYDNEY, 8 OCTOBER 2021

Application for an unfair dismissal remedy – respondent claims applicant’s dismissal a “genuine redundancy” within the meaning of s.389 of the Fair Work Act 2009 – job no longer exists due to changes in operational requirements – whether enterprise agreement consultation clause applied – enterprise agreement consultation clause applied – respondent found to have not complied with enterprise agreement consultation clause – whether redeployment was reasonable in all the circumstances – redeployment not reasonable in all the circumstances – extensive redeployment process engaged in – applicant only applied for one of 33 available roles – applicant unsuccessful in application for available role – implication of findings in this decision to unfair dismissal merits decision – objection on the basis of “genuine redundancy” dismissed – proceedings to be relisted on a date to be fixed

Introduction

[1] Mr Peter Davison (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with DHL Supply Chain (Australia) Pty Ltd (Respondent) on 25 February 2021, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and that the Applicant is thus not a person protected from unfair dismissal (s.385(d) of the Act).

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application. Ms Melinda Bolton, Industrial Officer, United Workers Union (UWU) appeared for the Applicant. Mr Michael Tamvakologos, Partner, Seyfarth Shaw lawyers, appeared with permission for the Respondent. Following the hearing, written closing submissions from both parties were filed.

[4] Having considered the evidence tendered, and the submissions of the parties on the facts and the law, I have determined that the Applicant’s dismissal was not a case of “genuine redundancy” within the meaning of the Act. My reasons for this decision follow.

Representation by lawyer or paid agent

[5] The Respondent sought permission to be represented by a lawyer in these proceedings. The Applicant opposed the Respondent being granted permission to be legally represented. Following the receipt of submissions in accordance with directions made, I granted permission for the Respondent to be legally represented generally by solicitors from Seyfarth Shaw lawyers pursuant to the discretion afforded to me under s.596 of the Act.

[6] I made this decision on the basis that the matter has complexity (given the number of disputed facts and questions of law between the parties) and involves evidence from seven witnesses. In my view, by reference to s.596(2)(a) of the Act, the proceedings would be conducted more efficiently with the involvement of legal representation on behalf of the Respondent.

[7] I did not accept, as contended by the Applicant, that granting permission for the Respondent to be legally represented would be such that it would provide the Respondent with an advantage, or otherwise give rise to unfairness. Ms Bolton’s submissions on the issue of permission are concise, well-structured, and engage directly with the criteria under s.596 of the Act. In this regard, Ms Bolton’s submissions identify that the Applicant was being represented by a sophisticated and experienced advocate from the UWU, who appears to be more than capable of engaging with any issues (of fact or law) arising in the proceedings and ensuring that any procedural issues that might emerge during the hearing would be engaged with in such a way such as to cause the Applicant prejudice.

Factual Background

[8] The Respondent tendered the following witness statements into evidence:

(a) Witness Statement of Ms Diane Shamsi dated 28 April 2021;

(b) Second Witness Statement of Ms Diane Shamsi dated 19 May 2021;

(d) Witness Statement of Ms Vanessa del Prete dated 19 May 2021;

(e) Witness Statement of Ms Carolyn Jane Gorrey dated 19 May 2021; and

(f) Witness Statement of Mr Daniel John Cassar dated 19 May 2021.

[9] The Applicant tendered the following witness statements into evidence:

(a) Witness Statement of Mr Peter Davison dated 11 May 2021; and

(b) Witness Statement of Mr Jonathon Dixon dated 12 May 2021.

[10] I find the following to be part of the uncontested relevant factual background (at least, for the purposes of determining the question of genuine redundancy):

(a) The Applicant commenced employment with the Respondent on 1 March 2004 as a permanent full-time employee.

(b) The Respondent operates warehousing and distribution services to clients under contract from a range of sites, including several in Western Sydney.

(c) Mr Davison worked at a facility at 52 Holbeche Road, Arndell Park, New South Wales (AP2 site) as a “Storeperson” for an importer and distributer called Stuart Alexander (SA).

(d) In August 2020, Stuart Alexander advised the Respondent that its contract would cease (SA contract).

(e) As a result of the SA contract coming to an end, it became necessary for the Respondent to reduce staffing levels. The Respondent had no requirement that any person perform the Applicant’s job. This affected around 16 employees total, 13 of whom were employed in warehouse roles at the AP2 site.

(f) The Applicant’s employment with the Respondent ended on 25 February 2021 for reasons of “redundancy”. 1

Relevant law

[11] Section 385 of the Act qualifies a claim for unfair dismissal:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

[12] Before the Commission can consider issues of harshness, etc, sub-section 396(d) of the Act requires that the Commission decide whether the dismissal was a case of “genuine redundancy”:

“396 Initial matters to be considered before merits

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

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

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

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

[13] Section 389 provides the statutory definition as to what qualifies as a “genuine redundancy”:

“389 Meaning of genuine redundancy

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

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

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

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

(a) the employer’s enterprise; or

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

[14] In view of s.389 of the Act, and for the Commission to be satisfied that a dismissal was a case of genuine redundancy, there are three questions that need to be answered:

(a) Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?

(b) Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

(c) Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

[15] I note that, as summarised by the Respondent in their Closing Submissions, the primary issues in contention between the parties are whether:

“(a) DHL complied with any applicable obligation under the DHL Supply Chain (Australia) Pty. Limited Consumer Western Sydney Enterprise Agreement - New South Wales 2019…to consult about the redundancy: s.389(1)(b), Fair Work Act 2009 (Cth)…; and

(b) it would have been reasonable to redeploy the Applicant within DHL’s enterprise, or that of an associated entity: s.389(2).” 2

Was the Applicant’s job no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise?

[16] Sub-section 389(1)(a) of the Act provides that a person’s dismissal was a case of genuine redundancy if the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of an employer’s enterprise.

[17] These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy. 3 The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

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

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

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

• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists”.

[18] Further, it has been held that a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. In this regard:

“what is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant”. 4

[19] Put another way, the test is not whether the person’s duties survive. The test is whether the job previously performed by an employee still exists. 5

Submissions and Consideration

[20] The Applicant “does not dispute that the Respondent no longer requires the job the Applicant performed under the contract for Stuart Alexander to be done by anyone because of operational changes in the Respondent’s enterprise.” 6

[21] Having regard to this submission, and the evidence before me, I find that s.389(1)(a) of the Act is satisfied.

[22] In passing, I note that the Applicant has made submissions to the effect that the Applicant’s role did not cease to exist with the Respondent because his employment contract provides that he was engaged by the Respondent, and not by the Respondent to only work at the AP2 site. This submission directly traverses and contradicts the Applicant’s concession and admission set out in paragraph [20] of this decision. For that reason, the submission is of no moment, and in the formal sense, is rejected.

Did the Respondent comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy?

[23] The parties accept that the Applicant was covered by the DHL Supply Chain (Australia) Pty Limited Consumer Western Sydney Enterprise Agreement – New South Wales 2019 (Agreement).

[24] Clause 8 of the Agreement, “Introduction of Change in the Workplace”, provides as follows:

“8. Introduction of Change in the Workplace

(a) Employer's duty to notify

(i) Where the employer has made a definite decision to introduce major change in production, program, organisation, structure or technology that is likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes, the Union and/or an appointed representative.

(ii) Significant effects include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Where the Agreement makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

(b) Employer's duty to discuss change

(i) The employer shall discuss with the employees affected, the Union, and/or an appointed representative the introduction of the changes referred to in (a), the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees, the Union, and/or an appointed representative in relation to the changes.

(ii) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in (a).

(iii) For the purposes of such discussion, the employer shall provide in writing to the employees concerned, the Union and/or an appointed representative. relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees. The employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer's interests.

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative (appointed representative);

the DSC must recognise the representative

(d) Change to regular roster or ordinary hours of work

Where the employer proposes to introduce a change to the regular roster or ordinary hours of work of employees:

(i) the employer must notify the relevant employees of the proposed change; and

(ii) The relevant employees may appoint a representative for the purposes of the procedures in this term; and

(iii) As soon as practicable after proposing to introduce the change, the employer must:

(a) discuss with the relevant employees the introduction of the change; and

(b) for the purposes of the discussion-provide to the relevant employees:

(aa) all relevant information about the change, including the nature of the change; and

(bb) information about what the employer reasonably believes will be the effects of the change on the employees; and

(cc) information about any other matters that the employer reasonably believes are likely to affect the employees; and

(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

(iv) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees;

(v) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.”

[25] The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the section “is not made out unless the various requirements of the relevant consultation clause are demonstrably discharged by the employer”. 7

[26] I note also, regarding the principles underlining “consultation”, that it has long been held that:

“the requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.” 8

[27] Finally, the principles relevant to the construction of an enterprise agreement were summarised by the Full Bench of this Commission in AMWU v Berri Pty Limited 9, as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 10

Respondent’s submissions - consultation

[28] The Respondent argued in Opening Submissions that Clause 8 had no “possible application” to the Applicant’s redundancy:

“9. …Since clause 8(d) relates only to changes to regular rosters or ordinary hours of work, it has no possible application. DHL therefore takes Mr Davison’s case to be that it was obliged to, but did not, consult in the manner required by clauses 8(a)–(c).

10. Like any enterprise agreement provision, clause 8 is interpreted in accordance with settled principles. One begins with the ordinary meaning of the words, read as a whole and in light of their industrial purpose and context: WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]. One may have regard to the “industrial heritage” of a clause as part of this context, to understand the issue it is intended to address and how it came about: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [18]-[20].

11. Clause 8(a)(i) provides that DHL must notify employees of change where it has:

made a definite decision to introduce major change in production, program, organisation, structure or technology that is likely to have significant effects on employees…

Clause 8(a)(i) then lists examples of “significant effects”, including relevantly the termination of employment.

12. Clauses in this form are common and have their history in the Termination, Change and Redundancy Case (1984) 8 IR 34 (TCR Case). As is clear from authorities dealing with relevantly identical provisions (dealt with below), there are several elements which must be present before consultation is required under clause 8(a)(i):

(a) DHL must have made a “definite decision”;

(b) that decision must be “to introduce major change”;

(d) the major change to the relevant matter must be “likely to have significant effects”, as defined, on employees.

13. All of these matters must be present before consultation is required. In this case, they were not.

14. First, DHL did not make any decision to implement a change. It was simply informed by a customer that its contract would cease. Unlike cases where a company loses business and so decides to reduce its headcount in a group of employees who perform work across its range of contracts, there was no “decision” at all here. The loss of the Stuart Alexander contract automatically had the effect that the jobs of the persons employed specifically and solely to do Stuart Alexander work, including Mr Davison, were not required. There was no decision by DHL which had that effect.

15. There is nothing incongruous in this outcome as a matter of principle. The purpose of consultation provisions is to ensure that employees have the opportunity to present their views and to seek to persuade the decision-maker to a preferred outcome: see Communications, Electrical, Electronic, Energy, Information, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591, 198 IR 382 at [44]–[45], this aspect not disturbed on appeal. Thus, as illustrated by the TCR Case, the archetypal case for consultation is where the employer has decided to implement new technology in the workplace which may eliminate jobs. There, consultation requires that employees be given the opportunity, whatever their chance of success, to be heard and try to convince their employer otherwise, or of measures which should be adopted to mitigate the effects of the change.

16. Here, no amount of consultation could have affected the redundancy of jobs. The jobs in question were inherently tied to the Stuart Alexander contract, and Stuart Alexander made the decision to end its arrangement with DHL.

17. Second, insofar as DHL could be said to have made any decision, it was not to introduce a “major” change. In this regard:

(a) There is a distinction between a “major change” and a change which has “significant effects”.

(b) A change is not “major” only because it results in dismissals by reason of redundancy: Port Kembla Coal Terminal Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, (Port Kembla Coal Terminal) at [187] per Jessup J, see also [499] per White J.

(c) While a change may be “major” because of the number of redundancy-related dismissals concerned, that was not the case here: see Port Kembla Coal Terminal at [187] per Jessup J; Australian Nursing and Midwifery Federation v Bupa Aged Care Pty Ltd [2017] FCA 1246 where 23 redundancies in workforce of over 3,000 was not sufficient to constitute “major change”. At the relevant times DHL employed almost 3,000 people including nearly 2,000 in operational roles, and 24 of whom worked at Holbeche. Of those groups, 16 employees’ jobs (13 in operational roles) became redundant, and four employees were ultimately retrenched.

(d) Likewise, while a change may be “major” because of the effects it has on employees beyond those directly affected in the sense of their jobs becoming redundant (see Port Kembla Coal Terminal at [499] per White J), here the work on other contracts continued as normal.

18. Third, any change that occurred was not in relation to “production, program, organisation, structure or technology”. That requirement must be met even if a change is otherwise “major” (which in this case is denied): Port Kembla Coal Terminal at [186] per Jessup J, [316] per Rangiah J. Here, a contract was lost; as such, the work relating to Stuart Alexander ceased to exist. There was no change to the way that 52 Holbeche or DHL more broadly was arranged or operated, or to its organisation (that is, how the enterprise is managed or organised: Port Kembla Coal Terminal at [318] per Rangiah J). Plainly there was no change to the way that DHL’s operations were structured or the technology that was used.

19. For the above reasons, clause 8 of the Enterprise Agreement did not require consultation in this case. That being the case, s 389(1)(b) of the FW Act is satisfied in the sense that there was no such obligation.

20. In the alternative, if the Commission were to conclude that clause 8 did apply:

(a) employees, including Mr Davison as the relevant United Workers Union delegate, were informed of this;

(b) DHL communicated that it had lost the contract and that jobs were redundant;

(c) DHL communicated, accurately, that it was seeking to and believed it could redeploy all employees, and communicated the process for doing so;

(d) insofar as proposals were made by employees DHL addressed them. It promptly placed two employees who sought alternative employment into roles, and addressed Mr Davison’s own “solution” to the situation;

(e) DHL continued to meet collectively and one-on-one with affected employees for nearly 2 months; and

(f) insofar as any relevant information existed, it was communicated to employees, including the available alternative jobs within DHL.” 11

Applicant’s submissions - consultation

[29] The Applicant’s submissions regarding consultation obligations were as follows:

“9. Section 389(1)(b) of the Act provides that a dismissal will not be a genuine redundancy if the employer has not complied with any obligation under an applicable enterprise agreement to consult with the employee about the redundancy.

10. At all times, the Applicant’s employment was covered by the DHL Supply Chain (Australia) Pty Limited Consumer Western Sydney Enterprise Agreement – New South Wales 2019 (the Enterprise Agreement).

11. Clause 8(a)(i) of the Enterprise Agreement places an obligation on the Respondent to notify affected employees when they have made a definite decision to introduce major change. This major change can be in production, program, organisation, structure, or technology. The clause also stipulates that the major change must be likely to have a significant effect on employees.

12. Clause 8(a)(ii) provides a list of what is meant by “significant effect”. Importantly, clause 8(a)(ii) lists termination of employment and transfer of employees to other work or locations as significant effects.

Was clause 8 enlivened?

Definite decision

13. The Respondent submits that clause 8 is not enlivened within these circumstances because there was no definite decision made by the Respondent in relation to the loss of the contract. They submit that the decision was made by a third party, that being Stuart Alexander, by not renewing their contract with the Respondent. The Respondent also submits that this decision caused the Applicant’s job to cease existing. This submission rests on the assumption that the Applicant was employed solely and specifically to do work for Stuart Alexander.

14. The Respondent’s arguments ignore their role as the legal employer of the Applicant. Stuart Alexander as a third party were not capable of making any decisions in regard to the Applicant’s employment because they were not his legal employer.

15. The Applicant was not employed to work solely and specifically for Stuart Alexander. The Applicant was employed by the Respondent to work as a Storeperson across their logistics network. The nature of their business means that workers will be moved around from contract to contract according to the needs of the Respondent.

16. The letter attached to the Statement of Diane Shamsi at DS-1 is a letter that confirms the Applicant’s transfer into the role of Storeperson servicing the Stuart Alexander contract. Prior to transferring to the Stuart Alexander contract, the Applicant worked under a different contract at the same site. He did not enter into a new employment contract when he transferred into the role at 52 Holbeche in May 2019. Therefore, he was not employed solely and specifically to perform work for Stuart Alexander.

17. While the decision made by Stuart Alexander not to renew the contract led to negation of any demand for the Applicant’s work at this section of 52 Holbeche, it is only a legal employer who can make the decision to make an employee’s job redundant.

18. Accordingly, there was a definite decision made by the Respondent within the meaning of clause 8(a)(i) to make the Applicant’s job redundant in August 2020.

Major change

19. The Respondent submits that any decision that had been made was not to introduce what could be constituted as a “major” change.

20. The Enterprise Agreement does not cover all employees of the Respondent. It covers the employees at 52 Holbeche and two other sites. Accordingly, clause 8 of the Enterprise Agreement does not apply to all employees within the Respondent’s enterprise, it only applies to those employees at the sites covered by the Enterprise Agreement. So, any major change that the Respondent has decided to make only needs to apply to the sites covered by the Enterprise Agreement and must only have a significant effect on the employees covered by the Enterprise Agreement.

21. The Respondent has stated that at the time of the dismissal, there were 24 operational employees at 52 Holbeche, of which 16 were made redundant when the Stuart Alexander contract was lost. This is a significant proportion of the operational employees at 52 Holbeche. Consequently, the Applicant’s dismissal can be distinguished from the precedents relied upon by the Respondent in their submissions as this case is not dealing with a workforce of thousands.

22. Considering the Enterprise Agreement only covers three sites, the closing of a section of one of those three sites falls within the scope of a major change.

Nature of the change

23. The loss of the Stuart Alexander contract and the decision by the Respondent to make those jobs redundant led to a change in relation to production and organisation at 52 Holbeche.

24. The nature of the Respondent’s business is providing warehousing and distribution services. Therefore, production in this context is the provision of contracted warehousing and distribution services. Deciding to redeploy some employees and dismiss others is a change to production in this context. This is because when the Respondent made the relevant jobs redundant, they made a decision regarding the way in which production operates at 52 Holbeche.

25. It is also very clear that by making the decision to make the jobs involving the performance of work for the Stuart Alexander contract redundant, there was a change in the organisation of the work being done at one of the only three sites covered under the Enterprise Agreement.

Clause 8 was enlivened

26. The nature of the Respondent’s business is to provide third party logistics to clients which means that contracts are constantly in a state of being renewed and lost. If their arguments in relation to their obligations under clause 8 are accepted, then it would mean they would never have to consult when a contract was lost and clause 8 would be deprived of all meaning.

27. For the reasons outlined above, clause 8 of the Enterprise Agreement was enlivened when the Respondent made the decision to make the Applicant’s job redundant and again when they decided to redeploy seven out of 11 employees and dismiss the remaining four on 25 February 2021.

Did consultation occur?

28. Clause 8 of the Enterprise Agreement requires consultation to occur once a “definite decision” has been made to introduce a major change to the workplace. In considering whether the Respondent’s obligations under clause 8 have been met, it is necessary to determine when the “definite decision” regarding a major change was made by the Respondent and what that decision was.

29. As discussed above, the definite decision to make his job redundant can only rest with the Respondent as his legal employer.

30. The Applicant submits that in August 2020 the Respondent made the definite decision to make the Applicant’s job redundant, however consultation did not occur because the Applicant was not advised that the Respondent was considering dismissals as a result of the redundancies.

Principles

31. Enterprise agreements are required to include a term that ensures that when an employer makes a definite decision about a major change to the workplace that is likely to have a significant effect on employees, then the employer must consult with the employees. The fact that enterprise agreements are required to include such a term illustrates the emphasis placed upon consultation as a means by which employers and employees can attempt to mediate when major changes occur within a workplace.

32. A possible outcome of the consultation process can be that the major change as decided is varied. Further, this consultation should not be treated as “perfunctory advice on what is about to happen”.

33. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No2) Justice Logan held:

[49] A purpose of a consultation clause is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager. These clauses involve a recognition that good workplace relations and indeed, good management in modern times, benefits from consultation with a work force and the interchange between worker and management.

34. The employer must hold discussions with employees after the definite decision to implement a major change has been made, but before the change has been implemented.

35. If a process fails to provide the opportunity for employees to influence a decision maker or mitigate the impacts of the changes, then the consultation obligations have not been met.

Clause 8(b)(i)

36. Clause 8(b)(i) states that the employer shall discuss with the affected employees and/or the Union:

a. The introduction of the changes that the employer has decided will occur;

b. The effects the changes are likely to have on employees; and

c. Measures to avert or mitigate the adverse effects of such changes on employees.

37. Clause 8(b)(i) also states that the employer will give prompt consideration to matters raised by the employees and/or the Union during the discussions. Clause 8(b)(i) reflects the settled principles, referred to above, in relation to consultation.

38. The Respondent did notify the Applicant verbally about the loss of contract in August 2020 but they did not advise him that they were considering dismissals as part of the consultation process.

39. The Respondent told the Applicant and the other affected employees that the contract had been lost and so as a result they had decided to redeploy them. The Respondent did not discuss with the Applicant the effects the changes were likely to have on him and the other employees. This is evidenced by the fact that, until he was dismissed on 25 February 2021, the Applicant was not aware that dismissal was an option being considered by the Respondent. Termination of employment is listed as a significant effect within clause 8(a)(ii) and it was an effect that should have been discussed with him prior to 25 February 2021.

40. The Applicant relies on his own evidence and that of Jonathon Dixon to reiterate that when DHL had lost contracts previously, the normal course of action was that employees were transferred into other roles at the initiative of DHL. Therefore, the Applicant proceeded through the process from August 2020 until 25 February 2021 under the impression that he would be transferred to another role, whether he applied for a role or not.

41. The Applicant had also been told numerous times between August 2020 and February 2021 by management that redundancy packages were not being considered.

42. Because the Respondent did not communicate to the Applicant that dismissals were being considered until he was being dismissed, it cannot be found that they communicated to the Applicant the effects the changes were likely to have on him and they did not effectively discuss measures to avert or mitigate the effects of the changes. If the Applicant had been told that the decision the Respondent had made was to dismiss one third of the remaining employees in that section, he could have had an effective conversation about measures to mitigate that change.

43. In so far as the Respondent argues that the meetings on 15 January 2021 and 25 February 2021 constituted consultation, the Applicant reiterates that he was not told during these meetings that a potential outcome of the redundancies was dismissal.

44. The Applicant enquired during the interview on 25 February 2021 what the next steps were in the process and still was not told that the Respondent was considering dismissals. In the context of the Applicant consistently being told that redundancy packages were not available, he could not have been expected to know that dismissal was a potential outcome.

45. In a redundancy process where it had been clearly communicated to affected employees that not every affected employee was going to be redeployed, it might be reasonable to state that if an employee was not actively applying for other roles then they could assume they would be dismissed. However, the facts in this case show that the Applicant held the reasonable belief that dismissal was not an option being considered by the Respondent until he was dismissed on 25 February 2021.

46. Further, if the interview on 25 February 2021 is taken to be part of a consultation process, it is still not adequate. The notes taken by Mr Cassar and Ms Del Plante indicate that the Respondent was working to a selection process during the interview. The Applicant was provided the opportunity to answer the questions put to him by Mr Cassar, but he was not provided the opportunity to respond to the comments and judgements made by Mr Cassar and Ms Del Plante. If this were a true consultation process, then the Applicant would have been provided the opportunity to respond to such assumptions as “negative body language” and “lack of care for the process”. These comments were clearly part of the Respondent’s decision-making process and they should have been put to the Applicant as part of a consultation process.

47. On 25 February 2021, the Respondent had not communicated to the Applicant that dismissals were being considered. As such, he was not provided with an opportunity to mitigate the effects that this decision would have on him and he was not afforded the opportunity to influence the decision that had been made by the Respondent. Adequate consultation that satisfies clause 8(b)(i) was not possible in the circumstances because of this omission by the Respondent and therefore the Respondent did not meet its obligations under clause 8 and s389(1)(b) of the Act.

48. The Respondent claims that no amount of consultation could have affected the redundancy of jobs. This assertion ignores the purpose of clause 8, which is to discuss a major change decided by the employer (the redundancy) and the effects that the change is likely to have on the employee (dismissal or redeployment). If adequate consultation had occurred in line with clause 8, then there is the prospect that the Applicant would have been able to influence the adverse effects the major change was going to have on him.

Clause 8(b)(ii)

49. Clause 8(b)(ii) provides that the discussions should commence as early as practicable after the employer has made the definite decision.

50. The Respondent made the definite decision to make the Applicant’s job redundant in August 2020. They advised the Applicant in August 202019 of the loss of the contract but then it was not until January 2020 that the Respondent advised they would be redeploying those who were affected.

51. While the verbal notification of the loss of contract occurred shortly after the Respondent was made aware of this development, they did not communicate that redeployment would occur until January. This means there was 4-5 months in between the Respondent deciding to make the jobs redundant and the commencement of the discussions regarding redeployment.

52. The Respondent has not led any evidence as to why it was not practicable to start the consultation process prior to January 2021. By the time Ms Shamsi attended the site on 12 January 2021, it was only 6 weeks until the end of the contract. If the Respondent had advised the affected employees and the Applicant that they were going to be redeployed at an earlier date, then there is a real possibility that other redeployment options under the Enterprise Agreement may have arisen.

Clause 8(b)(iii)

53. Clause 8(b)(iii) requires that the employer must provide certain items in writing to the Union as part of the consultation process.

54. The Respondent did not write to the Union in relation to the loss of the contract. Therefore, this limb of the consultation clause has not been satisfied.” 12

Respondent’s submissions in-reply - consultation

[30] The Respondent’s submissions in-reply on the issue of consultation, were as follows:

“4. DHL contends that it was not required to consult under clause 8 of the DHL Supply Chain (Australia) Pty Limited Consumer Western Sydney Enterprise Agreement – New South Wales 2019 (Enterprise Agreement). The Applicant’s essential contention is that DHL was obliged to consult, essentially on the basis that as the Applicant’s employer, DHL necessarily made the decision to make his job redundant: AS [14], [17], [29].

5. This submission elides the separate concepts embedded in the Enterprise Agreement’s consultation provision, as set out in DHL’s submissions dated 28 April 2021 (RS) at [12]. While there is no doubt the Applicant’s redundancy had a “significant effect” on him, to require consultation it must have been a “significant effect” which was likely to result from a “definite decision” by DHL to “introduce major change to production, program, organisation, structure or technology”. The decision must be of a particular type to meet the requirements of the clause - this feature was absent. Essential but missing features are not deemed to exist simply because redundancies were implemented – in this respect, see RS [17(b)]. As Milhouse DP has recently noted in Waitere v NewCold Melbourne No. 2 Pty Ltd[2019] FWC 6594 at [61]:

While the redundancies of the Applicants had a significant effect upon them, the definite decision on 21 February 2019 was not a decision to make changes in production, program, organisation, structure or technology…

As such, the consultation provision of their enterprise agreement was not enlivened.

6. The Applicant advances several subsidiary submissions to support his contention that clause 8 of the Enterprise Agreement was enlivened.

7. First, he says that the Applicant was not solely employed to do work on a particular contract, and was employed to work across DHL contracts: AS [15]. On the evidence (including that of the Applicant himself) that contention cannot be sustained. The Applicant’s “job” is made up primarily of the collection of the duties he was employed to perform, assessed by reference to the “term[s] of the particular employment”: Re Rubber, Plastic and Cable Making Industry (Consolidated) Award 1983 (1989) 31 IR 35 at 48.

8. What were the Applicant’s duties, assessed against his terms of employment? Clearly he was engaged to act as a storeperson, but his written terms of employment designated that he performed these duties for a particular client contract. That is consistent with how DHL structures its business in this regard. When that contract was lost, the jobs attached to it were redundant, without DHL deciding to “make” them so. So much is implicit in the concession at AS [8] that the Applicant’s position was redundant. The fact that Mr Davison “transferred” into that role (AS [16]) is of no moment – employees can and frequently do transfer between jobs. Indeed, the letter cited shows it was thought necessary to effect and document a transfer.

9. Second, the Applicant says that whether the change in question was a “major” change is to be assessed in the context of only the employees at the 52 Holbeche site, or those covered by the Enterprise Agreement: AS [20]–[22]. Without repeating its prior written submissions, DHL notes that this is inconsistent with the Applicant’s submission that he was employed “to work as a Storeperson across [DHL’s] logistics network”: AS [15].

10. Third, of the necessity that the change be one to “production, program, organisation, structure or technology”, the Applicant says that “deciding to redeploy some employees and dismiss others” is a change to “production” in the context of a contract warehousing and distribution business and a change to the “organisation” at a site: AS [24]. These contentions go unexplained and are unpersuasive:

(a) The meaning of a change to “organisation” is discussed at RS [18]. There is no evidence of change to that the way 52 Holbeche or DHL was managed or organised.

(b) The natural meaning of a change to “production” is that of a change to the processes by which a product is produced, or perhaps how a service is delivered. That is certainly the more natural meaning of a term which comes from the TCR Case (see RS [12]) and out of a context of increasing machination and automation. Insofar as ceasing to provide services to a customer is a change to “production”, that decision was not made by DHL. In any event, again, this elides the “major change” which DHL must have decided to implement and its likely “significant effects” on employees.

11. Shortly stated, DHL did not “decide to make [the Applicant’s] job redundant”. It simply was redundant, as a result of a customer’s decision. Nothing said to DHL in consultation could have changed that (contra AS [32], [33]). Nor was a decision of the type required by the consultation clause made by DHL.

12. In the premises, DHL was not obliged to consult with the Applicant. It nonetheless consulted as set out in RS [20].” 13

Applicant’s Closing submissions - consultation

[31] The Applicant’s Closing Submissions regarding consultation were as follows:

“Was consultation required pursuant to the terms of the relevant industrial instrument?

3. The Respondent submits that they had no obligation to consult because clause 8 of the Enterprise Agreement was not triggered when the Stuart Alexander contract was lost. To say that there was no obligation to consult because the redundancy was not a decision made by the Respondent completely ignores the nature of their role as the legal employer of the Applicant.

4. Loss of work does not automatically mean a job is made redundant. A decision by the employer is still required in order to make the job redundant because there has been a loss of work. The Respondent had the ability to direct the Applicant to perform work in some other capacity but instead they have made the decision to make the Applicant’s job redundant when the contract was lost. The evidence of Ms Shamsi confirms that there was a decision-making process undertaken by the Respondent after the loss of the contract. Ms Shamsi confirmed that that decision making process involved whether to retrench employees or redeploy them.

5. The Full Bench recently provided in Workpac Mining Pty Ltd v Botiki:

…there is nothing unusual about major changes in a business occurring in response to a decision made by an external client affecting the demand for the business’ services; this may occur in a range of industry contexts, not just the labour hire industry, and it has never been taken to mean so far as we are aware that the major change has occurred absent any decision being taken by the business.

6. Further, the Applicant maintains that the change was a major change within the meaning of clause 8 of the Enterprise Agreement. The Applicant relies on previous submissions in relation to this point.

7. Lastly, the Applicant submits that the change that did occur was a change in relation to production and organisation, as provided in the outline of submissions.

8. Considering the above, clause 8 was triggered and therefore consultation was required.

If consultation was required, did it occur satisfactorily?

9. The principles as to what constitutes consultation are well established and provided in the Applicant’s outline of submissions. The purpose of a consultation clause is to facilitate change where necessary in a humane way. If a consultation process fails to provide the opportunity for employees to influence a decision maker or mitigate the impacts of the changes, then the consultation obligations have not been met.

10. We reiterate that loss of work does not automatically lead to dismissal of an affected employee. It is possible that an employer could determine that a cohort of jobs is redundant, but they could redeploy all employees who are affected. Therefore, a common sense aspect of consultation in relation to redundancies is to make clear to employees that dismissal is a potential outcome of the changes that are occurring.

11. Additionally, clause 39 of the Enterprise Agreement provides that where redeployment is required then DHL will not require employees to accept a role with a lower hourly base rate of pay unless otherwise mutually agreed with the employee. It is the Respondent’s evidence that on 7 January they announced to the employees at the site that a redeployment process was about to begin.

12. The evidence of Ms Shamsi confirms that the only time the Respondent communicated in writing to the Union regarding the redundancies was via the email on 12 February 2021. This was some six months after they became aware of the loss of the contract and one month after the redeployment process started. The Respondent did not put into writing any details of the loss of contract to the affected employees at any time. The Respondent did not put into writing to the employees or the Union the date on which the contract was ending and a timeframe in which they intended to make final decisions about redeployment, as confirmed by Ms Shamsi.

13. The Applicant had previously been redeployed by the Respondent on another occasion when the contract he had been performing work for came to an end. During this process he had simply been redeployed by the Respondent to another role on the same pay rate.9 The evidence of Mr Dixon also provides it was his view that when redeployment was required, clause 39 of the Enterprise Agreement required the Respondent to place affected employees into roles at the same pay rate. Based on this understanding of clause 39, the Union’s position was that employees affected by the loss of the Stuart Alexander contract should not apply for the roles being posted by the Respondent if they were lower than their current pay rate. Mr Dixon understood that advice along these lines was being provided to the members at the site.

14. Based on the above, the Applicant had assumed that when the Respondent announced they were going to redeploy employees, that he would be redeployed to a role on the same pay rate. The lack of clear and necessary communication from the Respondent to the affected employees and the Union has meant that following the announcement of the redeployment process all parties were working under different assumptions as to the process that was taking place. The Applicant presumed that he was going to be redeployed to a role on the same pay rate and the Respondent did not communicate to him that if he did not apply for one of the roles on the lists provided then he would be dismissed.

15. The Respondent did not discuss with the Applicant the effects that dismissal might have on him and because of this, he was not able to have an adequate discussion with the Respondent as to the measures that could be taken to avert or mitigate the adverse effects of the changes on him.

16. During the meeting on 25 February, Ms Del Prete and Mr Cassar were not aware that dismissal was a potential outcome of the interview that they were conducting with the Applicant. This meeting was for all intents and purposes the final step in the redeployment process. The Applicant should have been advised during this meeting that a potential outcome was dismissal. The fact that the two people conducting the meeting did not know that dismissal was a potential outcome for some of the employees taking part illustrates the haphazard approach the Respondent took to the entire process.

17. If an employee is not told clearly what the potential outcomes are of the change that is being introduced, then they will not able to engage meaningfully in a consultation process.

18. It is submitted that the Commission would find, on the evidence, that:

a. the Respondent did not notify affected employees in writing of the major change that was occurring, that being the redeployment and retrenchment process;

b. the Respondent did not discuss with the Applicant the effects that the major change, specifically retrenchment, would have on him;

c. the Applicant was not aware that the Respondent was considering retrenchments prior to his meeting with Ms Shamsi and Mr Ali on 25 February;

d. the Respondent did not provide notice, in writing or verbally, to the Applicant that they had decided to dismiss him prior to the meeting with Ms Shamsi and Mr Ali on 25 February.

19. Accordingly, the Commission would find that the Respondent failed to meet its obligations to consult under clause 8 of the Enterprise Agreement.” 14

Respondent’s Closing Submissions - consultation

[32] The Respondent’s Closing Submissions on the issue of consultation were as follows:

“4. DHL’s primary submission is that the consultation clause set out in clause 8(a) to (c) of the Western Sydney EA did not apply, on the basis that DHL did not make a “decision” to implement any change; and if there was such a decision, it was not a decision to make a “major change” to any of the matters with which the provisions are concerned, within the meaning of clause 8(a)(i) as understood with reference to similar clauses in other industrial instruments.

Given the particular terms of the Applicant’s employment contract, DHL did not make a “decision” to implement any change within the meaning of clause 8(a)(i) of the Western Sydney EA

5. For the reasons set out at [14] to [16] of DHL’s Opening Submissions (CB 21 - 22) and [4] to [8] of DHL’s Reply Submissions (CB 39 - 40), DHL did not make a “decision” to implement change. The loss of the Stuart Alexander contract had the automatic effect that the roles specifically employed to do the Stuart Alexander work were not required.

6. Nothing in the evidence supports the Applicant’s proposition that DHL made a ‘decision’ to implement change. To the contrary:

(a) the Applicant acknowledged that the ending of the Stuart Alexander contract was a decision made by the client;

(b) Diane Shamsi gave evidence, consistent with the terms of the Applicant’s employment contract, that the Applicant was employed as storeperson specifically to perform work for the Stuart Alexander contract, and this was not challenged; and

(c) no evidence was led, or argument put, to the effect that the employment contract should not be interpreted in accordance with its express terms based on ordinary contractual principles of construction.

7. It follows that DHL has made out its submission that when the Stuart Alexander contract was lost (due to the decision of Stuart Alexander), the jobs attached to it were redundant, without DHL having to decide to “make” them so: DHL’s Reply Submissions at [8] (CB 40). Where employees’ jobs are inextricably linked to a particular client contract, and that contract is lost, their jobs are redundant as a result of the terms of engagement. There was no additional or intervening decision to be made.

8. The Applicant says at [4] of his Closing Submissions that “Loss of work does not automatically mean a job is made redundant. A decision by the employer is still required in order to make the job redundant because there has been a loss of work. The Respondent had the ability to direct the Applicant to perform work in some other capacity but instead they have made the decision to make the Applicant’s job redundant when the contract was lost.”

9. This argument contains a grain of truth and two erroneous premises. First, whilst it is correct to say that loss of work does not automatically mean a job is made redundant in all cases, that raises a further question: in what circumstances will loss of a client contract make a job redundant? Here, the employment contract provided that the job was to work on the Stuart Alexander contract only, not to work as a storeperson generally at DHL. It follows that without the Stuart Alexander contract, there was no job to be performed and the Respondent did not require the job to be performed by anyone.

10. Secondly, the Applicant says that DHL had the ability to direct him to perform work in some other capacity. No explanation or support is provided for this statement. There is no basis for it in law. Absent other authorisation, DHL could not direct the Applicant to do anything outside the scope of his employment contract, which concerned exclusively working under the Stuart Alexander contract. This erroneous premise that DHL had the ability to direct the Applicant to perform work in some other capacity is not to be conflated with the statutory obligation to seek to redeploy the Applicant. That is an obligation which finds its source in the FW Act, not the terms of the employment contract.

11. The only provisions of the Western Sydney EA which deal with redundancy and redeployment are clause 16 (which provides that DHL “will seek to avoid redundancies” and goes on to deal with process requirements and severance entitlements), and clause 39, which is dealt with at greater length below (see from paragraph 31). Insofar as it was suggested to Ms Shamsi in cross examination that clause 12.4.3 of the Western Sydney EA (CB 108) supplied DHL with the power to redeploy employees unilaterally to other work, any such submission cannot survive scrutiny of that provision. Clause 12.4.3:

(a) requires that employees “comply with all reasonable requests to transfer to another location”, provided that it entails no more than 30 minutes’ additional travel time;

(b) as such, supplies no absolute right even to employees to another location; and

12. The Western Sydney EA sets up a framework for employees to move to a site other than where they are initially engaged, including one not named in clause 4(a), if this is necessary to perform work on the contract they are employed to service. It does not confer any right to unilaterally move them to a different job. Nor did the Applicant’s contract. DHL was not at liberty to determine that the Applicant should work elsewhere, such that it had a choice as to whether his job would be redundant. The job simply was redundant.

13. The decision in Workpac Mining Pty Ltd v Botiki[2021] FWCFB 3325 (relied on by the Applicant at [5] of his Closing Submissions) does not assist the Applicant. In particular, the Applicant relies on the following passage at [27].

14. This passage must be read with reference to the particular facts of the case. In Botiki, the employer did make a decision to make major change. The employer decided to reduce its workforce by 23 (some 31%) and selected 23 roles for redundancy in response to a reduction in production by a client: Botiki at [3] and [4]. A decision by an employer to reduce its workforce and selecting those roles to be impacted following a decision made by a client, is quite distinct from the loss of an entire contract to which jobs are inextricably linked. In the latter case (the situation at issue here), no decision is required for the jobs attached to that contract to be redundant. In the present matter, the question was not “should these roles be made redundant”, as the Applicant suggests; rather, it was “these employees’ roles are redundant; can we place them into another role?” Where (as here) the employer has no right to change the nature of the employee’s job, the question of moving them is solely a matter for the redeployment criterion in s 389(2) of the FW Act. To conflate this with the issue of whether the employer made a decision would, with respect, lead the Commission into error.

There was not a “major change” to production, program, organisation, structure or technology within the meaning of clause 8(a)(i) of the Western Sydney EA

15. DHL’s Opening Submissions at [18] (CB 22) and Reply Submissions at [10] (CB 40 - 41) are repeated. There is no evidentiary basis to find that there was a major change to production, program, organisation, structure or technology at the 52 Holbeche site or at DHL as a whole. Even if the scale of a change renders it “major” (which is denied in this case), it must additionally be one to “production, program, organisation, structure or technology”: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, 248 FCR 18 at [316] to [317] per Rangiah J; see also at [184] to [186] per Jessup J.

16. The Applicant’s proposition at [23] to [25] of his Opening Submissions (CB 47) (that the loss of the Stuart Alexander contract and redundancy of the jobs performing that contract was a change to production or organisation) is not supported by any evidence; nor indeed is it explained beyond the level of bald assertion. DHL’s third party logistics business did not change in terms of its production (more accurately, the delivery of third party logistics services and the manner of their delivery) or the organisation of the business. No direct evidence was led by the Applicant or Jonathon Dixon to this effect. No questions were put to DHL’s witnesses about any such change to production or organisation, let alone why it should be considered “major”. The Applicant’s argument about this aspect should not be accepted.” 15

Applicant’s Closing Submissions In-reply - consultation

[33] Finally, the Applicant made the following Closing Submissions in-reply:

“2. Clause 8 of the DHL Supply Chain (Australia) Pty Limited Consumer Western Sydney Enterprise Agreement – New South Wales 2019 (‘the Enterprise Agreement’) applied in the circumstances of this case because there was a decision made by the Respondent to make the Applicant’s job redundant and then to dismiss him.

3. The Respondent in their submissions reference the Applicant’s contract of employment. The Respondent has filed a letter dated 6 May 2019 which confirms the Applicant’s transfer to perform work on the Stuart Alexander contract. This letter refers to a letter dated 2 January 2008, which was filed with the Applicant’s statement. The letter dated 2 January 2008 states “All other terms and conditions of employment are in accordance with your contract of employment…”. The contract of employment referred to in this letter has not been produced by the Respondent.

4. There is nothing within either of these letters or the Enterprise Agreement which explicitly prevented the Respondent from directing the Applicant to perform work on another contract other than the Stuart Alexander contract.

5. The Applicant maintains that he was employed to work as a Storeperson for the Respondent, not just to perform work on the Stuart Alexander contract. The letters dated 2 January 2008 and 6 May 2019 are simply letters confirming transfer of the Applicant’s role within the Respondent’s network.

6. Therefore, following the loss of the Stuart Alexander contract, the Respondent was required to decide whether to redeploy the Applicant to another role or whether to retrench him. They ultimately decided to dismiss him on 25 February 2021. Ms Shamsi provided evidence that the Respondent was required to decide what would happen to the employees who were performing work under contracts that had been lost.

7. Further, Ms Shamsi was questioned in relation to clause 12.4.3 and clause 5 of the Enterprise Agreement. Ms Shamsi’s evidence was that these clauses do not enable the Respondent to direct employees to work at other sites which were only covered under the Enterprise Agreement. The Applicant submits that the interpretation provided by Ms Shamsi is incorrect. Clause 5 contemplates situations in which employees may be directed by the Respondent to perform work covered by other enterprise agreements within their network and stipulates that they will not suffer a reduction in conditions, wages or allowances as a result.

8. The Respondent has attempted to impose this same interpretation on to the Enterprise Agreement as a whole. But this stipulation that the Respondent cannot direct employees to work at other sites under contracts for other clients does not exist explicitly or implicitly within the Enterprise Agreement. Ms Shamsi provided evidence that each warehouse services a different contract, meaning that if an employee was directed to perform work at a different warehouse in accordance with clause 12.4.3 then they could be performing work on a different contract.

9. The Respondent is attempting to manufacture an interpretation of the Applicant’s terms and conditions of employment and the Enterprise Agreement that is incorrect in order to avoid their obligations under clause 8.

10. Further, the Applicant relies on the submissions filed 12 May 2021 at paragraphs [19] – [25] in relation to the question of whether there was a major change to production or organisation. The Applicant reiterates that clause 8 of the Enterprise Agreement did not apply to the entire workforce of the Respondent, it was only applicable to the three sites named at clause 4(a). Consequently, whether a “major change” occurred must be considered in the context of the affected employees at these three sites. Ms Shamsi provided evidence that there were approximately 15 to 20 employees working under contracts other than the Stuart Alexander contract at 52 Holbeche in January 2021. At 227 Walters there were approximately four employees working under the Enterprise Agreement in January 2021.

11. There was a change to the production of the Respondent’s enterprise because production in this case refers to the provision of third-party logistics services. When there is the loss of a contract and the closing of a significant part of a warehouse, this is a change to the services provided by the Respondent. Considering Ms Shamsi’s evidence as to the number of employees at 52 Holbeche and 227 Walters, referred to above in paragraph 10, the redeployment or retrenchment of 13 employees from 52 Holbeche was a major change. Based on Ms Shamsi’s evidence, half of the employees at 52 Holbeche were going to be redeployed or retrenched following the loss of the Stuart Alexander contract.

12. This is also a change to the organisation of the Respondent’s business because the location of where work covered by the Enterprise Agreement was being performed was significantly altered by the redeployment or retrenchment of the affected employees. The displacement of 13 of the employees at 52 Holbeche is a significant alteration to the way work is performed at one of only three sites covered by the Enterprise Agreement. In this context, this is a major change to the organisation of the Respondent’s enterprise.

13. Considering the above, clause 8 was applicable in this case and therefore the Respondent was obliged to consult with the Applicant in relation to the decision to make his job redundant and dismiss him.” 16

Consideration – Did Clause 8 of the Agreement in relation to consultation apply?

[34] The Agreement covered and applied to the Applicant’s employment at the time of his dismissal.

[35] The coverage of the Agreement encompasses employees of the Respondent, not covered by any another enterprise agreement (EBA Exclusion), who perform warehouse and distribution work at one of the following three worksites:

(a) 2 Millner Avenue, Horsley Park, New South Wales (HP site);

(b) 227 Walters Road, Arndell Park, New South Wales (AP1 site); and

[36] The Respondent submits that Clause 8 of the Agreement has no possible application to the Applicant’s redundancy. I reject this submission, and in doing so, make the following findings:

(a) Whilst the change at the AP2 site arose from SA’s decision to cease its contract with the Respondent, the decision to make any change, and the scope of the change to be made, was squarely the prerogative of the Respondent. In other words, the changes made at the AP2 site were determined by the Respondent. In my view, the fact that any change to the Respondent’s operations flowed from the loss of a contract with a third party does not alter the fact that any decision to make changes at the Respondent’s workplace (i.e. at the AP2 site), flowing from the loss of the SA contract, was a decision of the Respondent.

(b) the changes to be made at the AP2 site were a major change in the “organisation” of the workplaces covered by the Agreement, which were likely to have significant effects upon relevant affected employees. I make this finding having regard to the following facts:

(i) the Agreement covers the Respondent’s HP, AP1, and AP2 sites. It does not cover or apply to the whole of the Respondent’s business operations or sites, nor does it cover or apply to the roughly two thousand operational employees who work to deliver the Respondent’s relevant warehouse and distribution services;

(ii) there is no dispute between the parties that changes to the operational requirements of the Respondent’s workplace gave rise to the Applicant’s (and other employees’) job no longer being required to be performed by anyone (see paragraph [20] of this decision);

(iii) Sixteen of 24 roles at the AP2 site were, or were likely, impacted by the change, i.e. being more than a majority of relevant employees at one of the three sites covered by the Agreement;¹⁸

(iv) the significant reduction in the number of roles required to perform work at the AP2 site is a change in the manner in which work is organised at the AP2 site, again, being a change to the manner in which work is organised at one of the three sites covered by the Agreement; and

(v) the definition of “significant effects” sets out inclusive, not exclusive, examples. There can be no suggestion that the reduction of 16 roles at the AP2 site, giving rise to termination of employment, the elimination or diminution of job opportunities and job tenure (including in terms of Agreement coverage), and the transfer of employees to other work locations (voluntarily or by direction), falls within the definition of significant effects under clause 8(a)(ii) of the Agreement.

[37] I note that my findings in the foregoing paragraph are consistent with the decision of the Full Bench of this Commission in WorkPac Mining Pty Ltd v Peni Botiki, Nathan Calder, Craig Kedwell, Wayne Powell and Francisco Valdivia,¹⁹

Consideration – Did the Respondent comply with Clause 8(b) of the Agreement in relation to consultation?

[38] Having found that the consultation requirements under the Agreement applied to the dismissal of the Applicant, I must now determine whether the Respondent complied with same.

[39] Whilst the Respondent engaged in an extensive redeployment process, to which consultation was a central attribute, I do not accept that the Respondent complied with the consultation requirements set out under Clause 8(b) of the Agreement. In this regard, I accept the Applicant’s evidence that he was not advised during the redeployment process, and prior to his dismissal on 25 February 2021, that he would be made redundant should he fail to apply for and/or be successful in securing an alternative role. In my view, genuine consultation under Clause 8(b) of the Agreement necessitated the Applicant being told or put on notice that a likely or potential outcome of his failure to be redeployed into another role could lead to his dismissal for reasons of redundancy, and for him to be given an opportunity to consider his position in that regard, and provide feedback (including in relation to potential alternatives for the Respondent to consider prior to determining to dismiss the Applicant for reasons of redundancy).

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

[40] Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or an associated entity of the employer.

[41] In my view, the correct interpretation of subsection 389(2) remains as stated in Ulan Coal Mines Limited v A. Honeysett & Ors (Ulan Coal): 20

“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

…

[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.

(emphasis added)

Respondent’s submissions - redeployment

[42] The Respondent’s Opening Submissions, regarding whether it would it have been reasonable in all the circumstances for the Applicant to have been redeployed, were as follows:

“21. The reasonableness of redeployment for the purposes of s 389(2) of the FW Act is assessed as at the time of the dismissal: Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578, 199 IR 363 (Honeysett) at [28]; Technical and Further Education Commission v Pykett[2014] FWCFB 714, 240 IR 130 (Pykett) at [35]. Relevant factors include any available position, the qualifications required to perform the position, the skills, qualifications and experience of the employee, the suitability of the employee for the position, the location of the position, the remuneration offered, and the willingness of the employee to be redeployed: Honeysett at [28], [33]. In assessing the reasonableness of redeployment it is necessary to identify the position or other work to which the employee could have been redeployed: Pykett at [34], [36], [38]–[40].

22. DHL made substantial efforts to redeploy the employees affected by the loss of the Stuart Alexander contract. Its HR personnel sought to identify any opportunities for employees, made them aware of these opportunities, and sought to directly place employees into these roles. They were not required to compete with external or other internal candidates. On the two occasions that an employee did seek work in an alternative position, they were promptly placed into it.

23. Mr Davison did not express any interest in these opportunities, notwithstanding the repeated requests that employees do so. He proposed one “solution” to the situation, and DHL explained that there was no role available in that area. He otherwise constrained the range of roles he was willing to accept to those under the Enterprise Agreement, and excluding an entire site, in such a way that that there was simply no role for him. Consistent with that:

[49] The Applicant was a “Storeperson (Preserved)” (SP) under the Agreement. He was also a named person under Schedules 3 and 4 of the Agreement. This entitled the Applicant, at the time he was dismissed (for reasons of redundancy), to:

(a) the higher SP rates of pay under Attachment 1 of the Agreement (cf. Attachment 3 of the Agreement);

(b) the higher redundancy/severance payments under Attachment 4 of the Agreement (in the case of the Applicant, entitling him to a forty (40) week severance payment at the higher SP rate of pay (cf. Attachment 4 of the Agreement));

(c) payment of 5 weeks’ notice of termination (at the higher SP rate of pay) (cf. clauses 13.1 and 16.1 of the Agreement);

(d) the additional payment of any unused Personal (Sick) Leave, up to a maximum of 228 hours (equivalent to six weeks), paid out upon termination in the event of redundancy (at the higher SP rate of pay) (cf. Attachment 4 of the Agreement); 27 and

(e) assistance in future employment through training in preparation of letters of application, resumes and interview skills. Reasonable time will be made available, by mutual agreement, for employees to attend interviews (cf. Attachment 4 of the Agreement). 28

[50] Attachment 3 of the Agreement, in respect of SP rates of pay, relevantly reads:

“Only employees whose names are listed below will be entitled to Storeperson (Preserved) rates of pay set out in Attachment 1 – Wage Rates [of the Agreement]. This list is exhaustive and will not be added to.

Where an employee whose name is listed below accepts a role covered by another [enterprise] agreement they will no longer be entitled to the preserved rates of pay set out in this Agreement.

For example: where a Storeperson (Preserved) whose name appears in the below table successfully applies for a Storeperson L1 position covered by [another DHL enterprise agreement], they will be paid as a store person L1 as per that [other DHL enterprise agreement] and will no longer be entitled to the [Storeperson (Preserved)] rates of pay under the Agreement.”

[51] Attachment 4 of the Agreement, in respect of SP redundancy payments, relevantly reads:

“Only employees whose names are listed in this attachment [Attachment 4] will be entitled to [the] below listed redundancy provisions. This list is exhaustive and will not be added to.

Where an employee whose name is listed in this attachment [Attachment 4] accepts a role covered by another Agreement they will no longer be entitled to the below preserved redundancy provisions.” 29

[52] The EBA Exclusion in Clause 5 of the Agreement reads:

“Employees who are covered by the agreements described above, and apply for roles that are covered within this Agreement, will be covered by the terms and conditions of this agreement if appointed to such roles. Employees who are covered by this Agreement and apply for roles which are not covered by this Agreement, will be covered by the terms and conditions of the applicable agreement of appointed to such roles. All terms and conditions will be clearly advised prior to such appointment.

No employee will suffer any reduction in employment conditions, wages or allowances, if directed to work where the work performed is covered by terms and conditions of one of the agreements described in Clause 5 Exclusions.”

[53] Clause 39 of the Agreement reads:

“In the event redeployment is required, DHL will aim and take steps to find suitable acceptable roles for the affected employees. In doing so, DHL will ensure that employees will not be required to accept a role with a lower hourly base rate of pay unless otherwise mutually agreed with the individual employee.”

[54] I construe the meaning of the words (extracted above at paragraphs [50] to [53]), and their combined operation, as follows:

(a) Employees who “accept” a role offered to them by the Respondent at a site other than the HP, AP1, and AP2 sites will not be covered by the Agreement and will not have their SP terms and conditions under the Agreement maintained at such other site. Instead, an employee who accepts such a role offered to them, will be covered by the terms and conditions set out in the enterprise agreement that has coverage at the other site. Acceptance of a role may arise where the employee applies for role and is successful in obtaining that role, or where an employee is offered a role by the Respondent and accepts same.

(b) Employees who are “directed” or “required” to move to a role at a site other than the HP, AP1, and AP2 sites will not be covered by the Agreement, but will have their terms and conditions under the Agreement maintained (to the extent they are more beneficial) at such other site (i.e. notwithstanding that at this other site a different enterprise agreement has coverage).

(i) the Respondent is not required, in the case a redeployment (for whatever reason), to redeploy an employee/s into another role/s not covered by the Agreement and maintain an employee’s higher rates of pay and entitlements. For example, a Respondent may not elect to do so because it would be unreasonable, in that the maintenance of the employee’s higher rates of pay and entitlements in the redeployed role would be too costly (and not be compensated under the client contract in place at the other site);

(ii) Clause 39 does not prohibit, limit, or otherwise restrict, the ability of the Respondent to make an employee redundant in circumstances where a “suitable acceptable role” (maintaining existing rates of pay and entitlements) is not available, and/or where an employee/s refuses to accept a redeployment position at a lower rate of pay;

(iii) an employee is not required, in the case a redeployment (for whatever reason), to accept a role not covered by the Agreement which does not maintain the employee’s higher rates of pay and entitlements. However, in refusing to accept such a role, the inevitable result would be redundancy.

(d) In short, and relevantly for the purposes of these proceedings, if the Applicant:

(i) applied (voluntarily) for a role at another site that is not covered by the Agreement, he would immediately, upon his employment in the new role being confirmed, forgo his higher SP rates of pay, and his higher SP redundancy/severance entitlements, under the Agreement (with rates of pay and redundancy/severance entitlements determined under the enterprise agreement that covers the new role);

(ii) accepted (voluntarily) a role offered to him by the Respondent at another site that is not covered by the Agreement, he would immediately, upon his employment commencing in the new role, forgo his higher SP rates of pay, and his higher SP redundancy/severance entitlements, under the Agreement (with rates of pay and redundancy/severance entitlements determined under the enterprise agreement that covers the new role); or

(iii) was directed or required (involuntarily) to work ain a role at another site that is not covered by the Agreement, he would not forgo his entitlement to higher SP rates of pay, and higher redundancy/severance payments, under the Agreement.

[55] In my view, the foregoing interpretation and construction is consistent with:

(a) Clause 7 (No Extra Claims);

(b) Clause 28 (Remuneration), i.e. “Increases in the base rates shown in Attachment 1 have to be agreed with our clients during contract negotiations”, in accordance with the cost-plus business model used by DHL;

(c) the unchallenged evidence of Ms Gorrey, where she states “… the rates we can charge customers are negotiated based on the rates in the applicable enterprise agreement”; 30 and

(d) Clause 12.4.3, which provides that this clause (12.4.3) does not apply in the event that an employee “accepts” a transfer to an alternative site.

[56] I am equally of the view that the construction and interpretation I have adopted:

(a) is consistent with the plain and ordinary meaning of the words of the Agreement read as a whole;

(b) gives each of the words in each of the provisions work to do;

(d) does not give rise to any absurdity. 31

[57] My findings and conclusions in paragraph [54] to [56] of this decision:

(a) are to be taken as a rejection of a construction or interpretation to the contrary, advanced by way of submission or evidence in these proceedings; 32 and

(b) form part of “all the circumstances” for the purposes of determining whether “it would have been reasonable in all the circumstances for [the Applicant] to be redeployed within” the Respondent’s enterprise or an associated entity of the Respondent (s.389(2) of the Act).

[58] I note that the Applicant submits that there is nothing stopping the Respondent from directing an employee (such as the Applicant) to perform work on another contract (i.e. other than the SA contract). Presumably, this submission is made subject to the Respondent satisfying Clauses 12.4.3 and 39 of the Agreement (in relation to travel time and “suitable acceptable role”).

[59] However, even if the foregoing submission by the Applicant be correct, it cannot be said that any of the provisions of the Agreement require the Respondent to make such a direction in circumstances where the making of such a direction would require the Respondent to maintain rates of pay and conditions that are in excess of the enterprise agreement that applies at the site that the employee is redeployed to. In other words, just like the Applicant has a choice not to accept redeployment to a site that does not maintain his/her higher rates of pay and conditions, the Respondent also has a choice as to whether it issues a direction to an employee to be redeployed to a site that would cause it to incur adverse costs consequences at that site (i.e. via the transfer of labour to that site at a higher cost unit than has been agreed to under the enterprise agreement (and client contract) applying at that other site).

[60] Indeed, if the Applicant’s submission in paragraph [58] above is correct, it would effectively result in the SP higher rates of pay and redundancy/severance entitlements being preserved for relevant employees no matter what site they are redeployed to, or in what circumstances the redeployment occurs. The words of the Agreement simply cannot be interpreted to that end. Further, such a position or outcome is not consistent with the spirit and tenor of the Agreement. In this regard, I reject the proposition that it would be acceptable under the Agreement for an employee to simply refuse to apply for or accept redeployed roles that do not maintain his/her higher rates of pay under the Agreement, so as to bring about a circumstance whereby the Respondent is essentially left with little choice but to ‘direct’ the employee be redeployed into a role that is not covered by the Agreement and maintain the employee’s higher rate of pay or other more generous entitlements. In other words, the engineering of a such a circumstance cannot be said to be one that creates any issue of unreasonableness around a failure to redeploy, nor can it be said to bring about any surprise as to redundancy.

[61] Having regard to paragraphs [54] to [60] of this decision, and the evidence, in relation to the redeployment of the Applicant, I make the following findings:

(a) At the time of his dismissal, there is no evidence that the Applicant could have been redeployed into a casual position covered by the Agreement (i.e. replacing a casual position with a full time position filled by the Applicant). In this regard, I accept the evidence of Ms Shamsi that:

(i) casual roles at the Respondent’s work sites are contingent labour, which is used to deal with the ebbs and flows of workloads from time to time (i.e. at the Respondent’s enterprise, casual roles are not simply interchangeable with permanent roles such that they ripen for consideration as an available role for redeployment); 33

(ii) the foregoing is especially so in circumstances where the ability to convert a casual role to a full-time role requires agreement from the Respondent’s customer. On the evidence, no such agreement occurred at the time that the Applicant was made redundant, and there can be no suggestion that the Respondent would be in a position to force a client’s hand in that regard. 34

(b) During the redeployment process, over a period of nearly two months, there were 33 available roles that were put forward to the Applicant to apply for. Other than in relation to maintenance of SP entitlements, 32 of these roles met the criteria set by the Applicant (himself) for redeployment. The Applicant only applied for one of the 33 available roles, being a role that was covered by the Agreement (and maintained his SP entitlements). 35 If the Applicant had applied for and been successful in his application to be redeployed into any of the other 32 available roles, he would have lost his entitlement to the higher SP rate of pay, and the higher redundancy/severance payment (in the event of redundancy).36 In his evidence, the Applicant accepts these findings.

(c) There was no offer made by the Respondent, through any of its employees, including Ms Shersby, for employees to be redeployed into other available roles with the Respondent, with rates of pay or other conditions to be negotiated (for example, to negotiate the maintenance of part or all of the higher SP rates of pay, or SP redundancy/severance entitlements, under the Agreement at a work site not covered by the Agreement). 37

(d) On the evidence, at the time that the Applicant was made redundant, there were no identifiable available roles that the Applicant could have been redeployed into which would have maintained his higher SP rate of pay and/or his higher SP redundancy/severance entitlements. Whilst the Applicant applied for the Whittaker & Sons storeperson role (which was covered by the Agreement), he was unsuccessful in that application (i.e. another employee in similar circumstances as the Applicant was successful in obtaining that role).

(e) In view of (a) to (d) above, I find (on the evidence) that it would not have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent. In this regard, I also make the following further findings in support of this conclusion (on the evidence, taking into account all of the circumstances):

(i) the evidence discloses that the Respondent made substantial efforts to redeploy employees displaced as a result of the loss of the SA contract (across a period of around seven weeks);

(ii) it would not have been reasonable for the Respondent to simply convert a casual role to a full-time role at a site covered the Agreement, and deploy Applicant into that full time role;

(iii) there was no obligation (under the Agreement or otherwise) for the Respondent to redeploy the Applicant into a role that was covered by the Agreement unless it was available at the time he was dismissed;

(iv) the Respondent had every right to engage in a selection and interview process, of internal employee candidates, so as to determine who it would choose to redeploy into available roles (especially where multiple employee applicants had applied for a particular role);

(v) there was no obligation (under the Agreement or otherwise) for the Respondent to redeploy the Applicant (or direct the Applicant to be redeployed) into a role that was not covered by the Agreement, and maintain the Applicant’s higher SP rate of pay and redundancy/severance entitlements; and

(vi) there was no obligation or requirement (under the Agreement or otherwise) for the Applicant to apply for or otherwise accept redeployment into role that did not maintain his SP rate of pay and redundancy/severance entitlements. However, the consequences of a decision by the Applicant to refuse to accept such redeployment are intolerably clear – redundancy (albeit, I have accepted that this outcome was not put squarely to the Applicant during the consultation process adopted by the Respondent).

Conclusion

[62] Determinations under s.389 are interlocutory. That said, there is no reason as to why evidence tendered in an interlocutory hearing would not, in the ordinary course, be able to be relied upon at a merits hearing. This equally (ordinarily) applies to any findings made at an interlocutory hearing, subject of course to more fulsome and/or cogent evidence being advanced at a merits hearing to displace or alter any such findings.

[63] Whilst I have made a finding that the Respondent did not comply with the consultation requirements set out under Clause 8(b) of the Agreement, there remains the evidence of Ms Gorrey as to the conversation that occurred at her meeting with the Applicant and Mr Dixon on 9 March 2021 (also in attendance were Mr Grant Connolly (Senior ER/IR Specialist), and Ms Elizabeth Axen (HR Manager)). This evidence was not contested by the Applicant or Mr Dixon in their witness statements, nor was it put to Ms Gorrey (or any of the other Respondent witnesses) during cross-examination that such evidence was wrong. Ms Gorrey’s evidence in this regard is as follows (with Mr Dixon of the UWU acting as the Applicant’s representative):

“During the meeting [on 9 March 2021] we had an exchange to the following effect:

Ms Gorrey: Peter [Applicant], are you prepared to consider any roles not covered by your current [enterprise] agreement?

The Applicant: No.

Mr Dixon: He would consider it if he got to keep his rates.

Ms Gorrey: The enterprise agreement clearly outlines that those terms and conditions only apply if Peter remains covered by the agreement. We do not have any available roles that are covered by that agreement.

Mr Dixon: Then there is clearly nothing else to discuss.”

[64] I observe that on the foregoing evidence as it currently stands, at no time during the above conversation was any clarification sought by the Applicant or Mr Dixon as to what alternative roles might be available (which were not covered by the Agreement, or which did not maintain the higher SP rate of pay and SP redundancy/severance entitlements). Nor did the Applicant or Mr Dixon seek further time for the Applicant to consider his position or consult with another person (such as the Applicant’s wife, or a legal representative). Rather, the option of an alternative role not covered by the Agreement, or a role that did not maintain the higher SP rate of pay and SP redundancy/severance entitlements, was dismissed out of hand.

[65] The approach of the Applicant at the meeting on 9 March 2021 is consistent with other evidence in these proceedings to the effect that the Applicant:

(a) no matter what role he was redeployed into, required the maintenance of his higher SP rate of pay and SP redundancy/severance entitlements; and

(b) held the erroneous or convenient belief that the Respondent was required to redeploy the Applicant into a role that maintained his higher SP rate of pay and SP redundancy/severance entitlements because such redeployment arose from an organisational change or the loss of a customer contract (and the Applicant had chosen not to apply for a role that would not maintain his higher SP rate of pay and SP redundancy/severance entitlements).

[66] Ms Bolton (after receiving and reviewing Ms Gorrey’s evidence on 24 May 2021) 38 did not make a request to lead or otherwise tender any further clarifying or contradicting evidence of the 9 March 2021 discussion (at the hearings on 24 May or 18 June 2021). Ms Bolton also dealt with Ms Gorrey’s evidence (as to the 9 March 2021 discussion) in her closing submissions, submitting that the discussion is irrelevant (because it occurred post dismissal); that the Applicant may have provided responses indicative of a strained relationship; and that the Applicant’s position at the 9 March 2021 meeting is not be seen as indicative of the decision (as to redeployment) that he would have made prior to his dismissal. Whether or not these submissions are ultimately made out is an issue for the merits hearing.

[67] What was said at the 9 March 2021 meeting will loom large in any determination as to whether the Applicant’s dismissal was indeed unfair, and if unfair, the nature and/or scope of any possible remedy. This is especially so having regard to:

(a) the reason for dismissal being prima face valid (noting the Applicant’s concession in relation to s.389(1)(a) of the Act);

(b) my findings as to the construction and operation of the Agreement (at paragraphs [54] to [56] of this decision);

(d) the intertwined and interconnected nature of factual issues in these proceedings concerning consultation and redeployment, especially when one comes to consider “other matters” to be taken into account when determining questions of unfairness (s.387(h)), and the requirement for a “fair go all round” to be applied by reference to the Object of Part 3-2 of the Act (s.381); and

(e) the entitlements that were paid out to the Applicant upon termination (which appear to be somewhere in the order of 45 to 51 weeks’ pay, at the SP rate of pay, in respect of notice payments, redundancy/severance payments, and unused sick leave), taking into account the fact that the award of compensation is discretionary, and that where compensation is awarded, Step 2 of the test in Sprigg v Paul’s Licensed Festival Supermarket requires the Commission, when calculating compensation, to deduct monies earnt since termination (including in relation to monies paid in respect of notice, redundancy/severance, and (for want of a better term) ex gratia sick leave termination payments). 39

[68] Having regard to the evidence, the submissions of the parties, and the reasons set out in this decision, I find that the Applicant’s dismissal was not a case of “genuine redundancy” within the meaning of s.389 of the Act due to non-compliance with clause 8(b) of the Agreement. An order dismissing the Respondent’s jurisdictional objection in this regard will be published with this decision, and the matter will be listed for further mention and programming on a date to be fixed.

DEPUTY PRESIDENT

Appearances:

Ms Melinda Bolton, UWU, for the Applicant

Mr Michael Tamvakologos, Seyfarth Shaw, for the Respondent.

Printed by authority of the Commonwealth Government Printer

1 See Form F2 filed by the Applicant on 12 March 2021; Form F3 filed by the Respondent 23 March 2021; Respondent’s Opening Submissions dated 28 April 2021 at [4]-[7].

2 Respondent’s Closing Submissions dated 23 July 2021 at [3].

3 Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.

4 Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors[2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]-[44] (Spender, Dowsett, and Allsop JJ).

5 Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 (Hamberger SDP), at [27].

6 Applicant’s Submissions dated 12 May 2021 at [8].

7 Maxwell v Bardrill Corporation Ltd[2015] FWC 4019 at [40]-[41].

8 See Gourdeas v Heyday 5 Pty Limited[2020] FWC 6132 at [28]; Maswan v Escada[2011] FWA 4239 at [19]-[20]; TCR Case (1984) 8 IR 34; (1984) 9 IR 115.

9 [2017] FWCFB 3005.

10 Ibid, at [114].

11 Respondent’s Opening Submissions dated 28 April 2021 at [9]-[20].

12 Applicant’s Submissions dated 12 May 2021 at [9]-[54].

13 Respondent’s Submissions In Reply dated 19 May 2021 at [4]-[12].

14 Applicant’s Closing Submissions dated 13 July 2021 at [3]-[19].

15 Respondent’s Closing Submissions dated 23 July 2021 at [4]-[16].

16 Applicant’s Closing Submissions In Reply dated 3 August 2021 at [2]-[13].

17 See Clauses 4 and 5 of the Agreement.

18 I note that 13 of the 16 roles were covered by the Agreement, with the other 3 roles being administrative or managerial employees.

19 [2021] FWCFB 3325, at [27]-[32].

20 [2010] FWAFB 3488.

21 Respondent’s Opening Submissions dated 28 April 2021 at [21]-[25].

22 Applicant’s Submissions dated 12 May 2021 at [55]-[65].

23 Respondent’s Submissions In Reply dated 19 May 2021 at [13]-[20].

24 Applicant’s Closing Submissions dated 13 July 2021 at [20]-[26].

25 Respondent’s Closing Submissions dated 23 July 2021 at [17]-[36].

26 Applicant’s Closing Submissions In Reply dated 3 August 2021 at [14]-[22].

27 Also noting Clause 16.2 of the Agreement.

28 Ibid. I equally note that Items (c) and (d) apply to all employees to whom the Agreement applies, see Clause 16.2 “Redundancy Pay” of the Agreement.

29 I note that the words set out above from Attachments 3 and 4 of the Agreement are replicated at Clauses 14.1 and 16.2 of the Agreement.

30 Witness Statement of Ms Carolyn Jane Gorrey dated 19 May 2021 at [20].

31 In other words, is consistent with the principles set out in AMWU v Berri Pty Limited[2017] FWCFB 3005, at [114].

32 See, for example, Transcript, 24 May 2021 at PN123; Witness Statement of Mr Jonathon Dixon dated 12 May 2021 at [5] and [10].

33 Transcript, 18 June 2021 at PN227.

34 Ibid.

35 Courtbook p.60, List of available roles 23 February 2021, Row 4, Whittaker & Sons Store-person role.

36 Transcript, 24 May 2021 at PN148-PN150, PN152, PN209, PN247-PN248, PN258-PN259, PN269, PN291, PN296-PN310, and PN337. Applicant’s Statement dated 11 May 2021 at [21].

37 Witness Statement of Ms Beverley Shersby dated 19 May 2021, at paragraphs 4(e) and (f), cf. Transcript, 24 May 2021 at PN319.

38 I note that the statement of Ms Gorrey (19 May 2021, Exhibit R3) only came to the attention of the Applicant and his representative (Ms Bolton) at the hearing on 24 May 2021 because it had been mistakenly omitted by the Respondent when filing its other evidence: Transcript, 24 May 2021, PN88-PN100, PN159, PN422-PN429, PN592.

39 (1998) 88 IR 21.

Peter Davison v DHL Supply Chain (Australia) Pty Ltd