[2021] FWC 1633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Guinea
v
Workpac Pty Ltd
(U2020/11059)

COMMISSIONER SIMPSON

BRISBANE, 29 MARCH 2021

Application for unfair dismissal – Jurisdictional objection –– Employer has not complied with obligation to consult – Not a genuine redundancy – Reinstatement inappropriate – Compensation ordered

[1] On 17 August 2020, Mr Peter Guinea (Guinea/the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Workpac Pty Ltd (Workpac/The Respondent).

[2] Workpac raised a jurisdictional objection on the basis Mr Guinea’s dismissal was a case of genuine redundancy and therefore Mr Guinea was not able to pursue an unfair dismissal application.

[3] The matter was listed for a conciliation before a Commission staff Conciliator on 8 September 2020 however it did not settle and was allocated to me for arbitration. I determined that both the jurisdictional objection and the merits of the application should be heard together. The hearing for the matter took place on 28 January 2020 via Microsoft Teams video.

[4] Mr Guinea was represented by Mr Adam Walkaden of the CFMMEU and Mr Dan Williams from MinterEllison appeared on behalf of Workpac.

Background

[5] On 8 March 2017, Mr Guinea was employed as a Coal Mining Operator and was deployed by Workpac, a labour hire company, to work at the Daunia Mine (the Mine), which is an open cut coal mine in central Queensland that is operated by BMA.

[6] As a Coal Mine Operator, Mr Guinea operated a Haul Truck at the Mine. Mr Guinea worked to a 7/7 roster though job shared the full time equivalent () role with another Coal Mine Operator. This meant that Mr Guinea worked two swings (with seven days off in between) and then had five weeks off work. During that five-week period, Mr Guinea’s job share partner worked his two swings (with seven days off in between).

[7] On the afternoon of Tuesday 30 June 2020, Mr Guinea submitted he was advised by telephone call from Workpac that his role at the Mine was no longer required.

[8] On 7 July 2020 Workpac confirmed in a letter that Mr Guinea’s role at the Mine was no longer required. This was said to be the result of a restructure that had occurred at the Mine. The letter went on to state that Mr Guinea’s notice period was four weeks and that during the notice period (which Mr Guinea was not required to work) that Workpac would seek to identify any reasonable alternative positions.

[9] In that four-week notice period, Workpac did not redeploy Mr Guinea and on 31 July 2020 his employment was terminated.

[10] Workpac submitted that Mr Guinea was dismissed by reason of redundancy. Mr Guinea does not accept that his dismissal was a genuine redundancy.

EVIDENCE

[11] Mr Guinea gave evidence that he commenced employment with Workpac in about January 2015. He said his first role with Workpac was at the BMA operated Saraji Coal Mine in Central Queensland where he worked as a Rear Dump Operator until about June 2015.

[12] Mr Guinea then worked at the BMA operated Goonyella Riverside Mine in Central Queensland as a Rear Dump Operator at Goonyella from about June 2015 until about February 2016. Thereafter, he accepted employment with Workpac at the BMA operated Daunia Mine in Central Queensland.

Commencement at Daunia Mine

[13] Mr Guinea said he started work at the Daunia Mine on about 8 March 2017 where he was described at that time by Workpac as a casual employee. Mr Guinea then converted to a permanent employment in about September 2019.

[14] Mr Guinea said that for the last 12 months of his employment at the Daunia Mine, he job shared his role with another Workpac employee, Ross Britton. This meant that he worked seven-day shifts, had seven days off, worked seven night shifts and then had five weeks off. Mr Guinea said that during that five-week period, Mr Britton worked the two seven day swings that Mr Guinea would have otherwise been rostered to work. Likewise, he said Mr Britton did not work the two seven day swings that Mr Guinea worked, which he would have otherwise been rostered to work.

[15] Ms Jessica Kemp, Site Manager, Project Services - East Coast Businesses for the Workpac Group said Workpac was a labour hire provider in several industries, including the coal mining industry. Ms Kemp said Workpac is not itself a coal mine operator and does not have its own mines.

[16] Ms Kemp said Workpac earns its revenue by deploying its employees to perform work for a client on an assignment basis under a services contract. Ms Kemp said when Workpac's employees perform that work for the client, Workpac charges the client.

[17] Ms Kemp said in her role, part of her responsibilities include:

(a) managing the Workpac workforce at the above mines or sites, including in relation to general employment, recruitment and safety matters; and

(b) liaising with the client in relation to production requirements.

[18] Ms Kemp said the day-to-day work of Workpac employees while on assignment is managed by Workpac's clients on the relevant job site.

[19] Ms Kemp said Workpac provides labour to BMA under a services contract, and in doing so, provides labour at the Daunia Mine in Queensland. Ms Kemp said Mr Guinea was employed by Workpac on a specific assignment to perform work at the Mine as a Mobile Plant Operator. Ms Kemp attached a copy of the most recent notice of offer to Mr Guinea dated 3 September 2019. 1

[20] Ms Kemp said that the employees of Workpac providing labour to BMA are managed on-site by BMA. She said at all times, BMA could direct Workpac regarding the number of Workpac employees it required on site and was able to staff the various crews in accordance with its production needs. Ms Kemp said this is a normal practice in the provision of labour hire workforces in the coal mining industry.

[21] Ms Kemp said, however, that Workpac retains “ultimate control” over the employment of its employees who are deployed on assignment. She said further, Workpac’s employees at the Mine are covered by the WorkPac Coal Mining Agreement 2019.

April - May 2020

[22] Mr Guinea said he was rostered to work seven shifts from Wednesday 1 April - Tuesday 8 April 2020. He said he worked those shifts without incident. He was next rostered to work on and from Wednesday 6 May 2020.

[23] Mr Guinea said that in about early May 2020, he became concerned that he would be unable to get to work due to the restrictions imposed by the Queensland Government on crossing the NSW/QLD border (the Border) in response to COVID-19 (as he was currently residing in Tweed Heads NSW).

[24] Mr Guinea said that on about Monday 4 May 2020, he telephoned Ms Kemp. His evidence was that the conversation was to the following:

Mr Guinea: I live in NSW and I am unsure about whether I will be able to get to work up at Daunia Mine.

Ms Kemp: You are not classed as an essential worker. You don't have a statutory ticket. You won't be able to cross the border and get to site.

Mr Guinea: I have heard that was the case. Can you let BMA know that I won't need travel and camp for my next swing.

[25] Mr Guinea said he then made a telephone call to Mr Chris Hull, his immediate supervisor employed by BHP, and explained to him that he had been in contact with Workpac and had been told that because he lived in NSW he would be unable to work upon his rostered shifts.

[26] Mr Guinea said that on account of the restrictions placed on crossing the Border, he did not work his rostered shifts in the periods from 6-12 May 2020 and from 20 -26 May 2020.

[27] Ms Kemp understood that for certain periods during Mr Guinea’s employment between about April and June 2020, he was unable to work at the Mine due to the Border closures as a result of the COVID-19 pandemic. Ms Kemp understood that during that time, only ‘Critical Resources Sector Employees’ were able to enter Queensland without having to quarantine, and Mr Guinea’s role did not fall within this exemption category.

[28] In relation to the border issues Mr Guinea was referred to paragraph 25 of his first statement and a discussion with Ms Kemp, on or about 4 May 2020. Mr Guinea was asked whether the discussion could have been on 28 April and he said he thought it was after that.

[29] Mr Guinea agreed that Ms Kemp advised him that because he was not an essential worker, he could not cross the Border. He said he did not have a statutory ticket and he was not classed as essential. He said he rang Ms Kemp because he wanted clarification. It was put to Mr Guinea that he got in contact with Queensland Health and they told him that because he was living in Tweed Heads, he could not cross the border. Mr Guinea said Queensland Health were not sure and they put it back onto his employer and told him to ask them.

[30] Mr Guinea agreed that if his work was not essential he could not cross the border. Mr Guinea was asked if he was aware there was a protocol at that time that if you lived close to the Borderyou could cross over to for example Surfers Paradise to perform work. He said at one stage you could only go 50km, but he had heard he could not go up there. Mr Guinea agreed during his oral evidence that Mr Britton could not work because he was classified as high risk being over 65.

Telephone call with Mr Hennessy 15 June 2020

[31] Mr Guinea said on 15 June 2020, he telephoned Mr Todd Hennessy, who is employed by BHP as a Superintendent at the Daunia Mine. Mr Guinea said at the time of the call he had not worked his last two swings and had not received any income for a period of eight weeks, other than a one-off payment of a week’s wages paid by BMA.

[32] Mr Guinea said during the call, words to the following effect were said:

Mr Guinea: Look mate, I have been off work for a while. I am not getting any pay. Is there any way that I can get JobKeeper?

Mr Hennessy: There is no reason you cannot come to work.

Mr Guinea: WorkPac are telling me differently. They have told me that I am not an essential worker and cannot come to work.

Mr Hennessy: There is no reason you cannot come to work. I was down in NSW yesterday to deal with a family tragedy. I flew back this morning and I am at work now.

Mr Guinea: I am only a truck driver. You are a superintendent with a statutory ticket.

Mr Hennessy: There is no reason you cannot come to work.

Mr Guinea: Ok, on your say so, I will come to work.

Mr Hennessy: When are you next rostered to work?

Mr Guinea: 18 June. I will be back then.

[33] Mr Guinea said after he finished that telephone call, he realised he had made a mistake, as he was next rostered to work from Thursday 2 July 2020. Mr Guinea said he tried to call Mr Hennessy a few times however could not get through so he telephoned Chris Hull where he explained his mistake. Mr Guinea said words to the following effect were said:

Chris Hull: Ok, if you want to come up and work the swing from the 18th June, you can. We are short at the moment and need numbers.

Mr Guinea: Ok, no worries. I will get up there for the swing.

Chris Hull: I will arrange for your travel and camp to be sorted.

[34] Mr Guinea was asked about his evidence where he said he did go up to the Mine for a roster. He was asked if he simply crossed the border and got on a plane. He said he applied for a border pass and he had to show it at the border, and he was waved through. He agreed the border pass dealt with whether he had been to a hot spot or had been in contact with someone who had COVID-19. He agreed the border pass did not deal with the specific nature of the work he performed.

[35] It was put to Mr Guinea that he may have unintentionally travelled to work when he shouldn’t have. Mr Guinea said he didn’t think so. He said he did believe he was not supposed to go up after speaking to Ms Kemp but then Mr Hennessey told him he could come up. Mr Guinea accepted that Mr Hennessey was an essential worker as a superintendent. Mr Guinea accepted that he was confused because he was being told by one person he couldn’t come up and another was telling him he could.

[36] Mr Guinea was asked if he remembered at a later time in August when the borders closed up again and he said he did when there was an outbreak in Sydney.

Meeting at BMA Mine on 17 June 2020

[37] Mr Guinea said he crossed the Borderand worked seven-night shifts from Wednesday 17 June 2020 to Tuesday 23 June 2020. Mr Guinea said he obtained a border pass through the Queensland Government and worked the swing without incident.

[38] Mr Guinea said on Wednesday 17 June 2020 he, along with the rest of the A crew in the Pre-strip department, attended a meeting at the start of shift conducted by Mr Sam Flower, a superintendent at BHP. Mr Guinea said Mr Flower said words to the following effect:

I have crunched the numbers and there are going to be some layoffs. 5 people will have to go from each crew. It will only be labour hire people that will be put off. It will not necessarily be the last people that were put on. It probably won't happen for 3 months. Are there any questions?

[39] Mr Guinea said he then asked a question, and an exchange took place with words to the following effect:

Mr Guinea: Are you going to let the workers that you let go know before they finish their swing? That would mean they can at least take their gear with them.

Sam Flower: I will be having that conversation with them before they leave site.

Mr Guinea: That would be great because that hasn't always happened in the past. In the past, the workers have flown home and it has been left until the day before they are due to come back to site to tell them that they don't have a job to come back to. Not only is their gear still up here, but it is also a full week that they could have been looking for employment.

Sam Flower: I will be having that conversation with them before they leave site.

[40] Mr Guinea said another employee asked a question about whether the new starters would be the first to go, especially as the new starters had temporarily replaced a number of BHP and labour hire workers that BHP had classified as 'high risk' employees. Mr Guinea said Mr Flower said that new starters would not necessarily be the first workers to be let go.

[41] Mr Guinea was referred to his first witness statement concerning the meeting on June 17, 2020. It was put to Mr Guinea that at the time he was made aware there would be an impact on labour hire, but the time frame had not been specified and Mr Guinea agreed, and agreed that he was told the time frame would be about three months.

Conversation between Ms Kemp and Mr Flower in late June 2020

[42] Ms Kemp said that in late June 2020, during a regular site visit to the Mine, she had a discussion with one of BMA’s Superintendents who advised her that:

(a) BMA was downsizing Production A and C Crews (which included the crew Mr Guinea had been engaged on) and no longer required the work of ‘three’ Workpac employees. One of the ‘Workpac employees’ Ms Kemp was told about was not in fact a Workpac employee, but the other two were Mr Guinea and his job-share partner, Mr Britton;

(b) Ms Kemp was advised that Mr Guinea and his job-share partner were no longer required to perform work at the Mine from 30 June 2020 as a result of the downsizing of the Production Crews.

[43] Ms Kemp stated that Workpac did not have input into the decision to downsize the Production A and C Crews at the Mine or the selection of Mr Guinea or his job-share partner as the people affected by the downsizing.

[44] Ms Kemp said she did not know what further reductions may have been made to those crews by BMA.

[45] Ms Kemp said that shortly after her conversation with BMA, she spoke with the Workpac National IR team and informed them of the proposed redundancy of Mr Guinea’s and Mr Britton’s employment.

[46] Ms Kemp was asked whether Mr Flower told her why the FTE role occupied by Mr Guinea and Mr Britton was no longer required and Ms Kemp said Mr Flower told her the reason was that BMA was reducing the crew sizes in production. Ms Kemp was asked whether Mr Flower told her why BMA decided to reduce the number of operators in production and she said no not at that time.

[47] Ms Kemp was asked if during the conversation with Mr Flower or at any other time later were any concerns expressed about Mr Guinea’s performance or conduct at work and she said no. Ms Kemp was asked if Mr Flower or anyone else from BMA expressed any other concerns to her about his performance, conduct or his age and she said no. Ms Kemp was asked if anyone had expressed any frustration with Mr Guinea about not being able to attend work because of the border closures and she said no.

[48] Ms Kemp was asked if Mr Flower explained what selection criteria has been used to select Mr Guinea and Mr Britton and she said no. Ms Kemp was asked whether she asked about the selection method used and she said yes, and she was told they just said they had carefully selected those three employees. Ms Kemp confirmed Mr Flower did not explain the criteria used.

Notification of termination of employment on 30 June 2020

[49] Mr Guinea said he was next rostered to work seven day shifts from Thursday 2 July 2020 to Wednesday 8 July 2020 and scheduled on a flight at about 2:30pm on Wednesday 1 July 2020.

[50] Mr Guinea said at about 4:50pm on Tuesday 30 June 2020, he received a telephone call from Ms Kemp and that words to the following effect were said:

Jessica Kemp: Your position is no longer needed at the mine. Your assignment at Daunia will terminate with effect from today. You are not required to work your next swing.

Mr Guinea: Why not?

Jessica Kemp: BMA rang and told us that your position is no longer needed. I have no more information than that.

[51] Ms Kemp said that she telephoned Mr Guinea on 30 June 2020 and informed him words to the effect that:

(a) BMA were reducing the crew sizes in Production A and C and that Workpac had been working with BMA to identify who would be affected by this reduction;

(b) unfortunately BMA had identified that his role was no longer required to be undertaken by anyone at the site and his position was therefore redundant;

(c) Workpac was providing him with 4 weeks' notice that his position was being made redundant and that during this period Workpac would liaise with him in relation to other available roles for redeployment;

(d) if Workpac was not able to redeploy him to another role, his employment with WorkPac would come to an end and he would be entitled to a redundancy payment;

(e) Workpac would work with him to attempt to identify another role and a recruiter from Workpac would be in contact shortly to discuss options.

[52] Ms Kemp said that Mr Guinea replied by asking if he had to complete a timesheet, and that she said she would look after this.

[53] Mr Guinea said it was his understanding that the only other Workpac employee assigned to work at the Daunia Mine made redundant at the same time was Ross Britton. Mr Guinea said he was unaware of any workers directly employed by BHP or another labour hire company that worked at the Daunia Mine being made redundant at the same time as himself and Mr Britton.

[54] Mr Guinea confirmed in his oral evidence that he received a phone call from Ms Kemp a few weeks after the meeting on 17 June and Ms Kemp told him his position had been taken out of the Mine. He confirmed that although the three-month timeframe was not accurate, he had been given an indication that redundancy of his role was possible.

[55] Ms Kemp was taken to her first statement 2 where she gave a summary of a telephone conversation on 30 June 2020 with Mr Guinea. Ms Kemp accepted that she advised Mr Guinea that unless he could be redeployed in the next four weeks, he would be made redundant. Ms Kemp could not estimate how long the phone conversation was.

[56] Ms Kemp was asked how many operators lost their jobs at the Daunia Mine at the same time as Mr Guinea. Ms Kemp said she was not aware. Ms Kemp was asked if she could explain why there was a reduction in the number of operator positions at the Daunia Mine and she could not. Ms Kemp was asked if she could say if there was a reduction in the number of operators at the Daunia Mine and she said she could not confirm that.

[57] It was put to Ms Kemp that once Mr Guinea was demobilised from the Daunia Mine on 30 June he ceased to be her responsibility and she agreed with that. Ms Kemp was asked who was responsible for Mr Guinea in the four-week period and she said Workpac had a recruitment team. It was put to Ms Kemp that in the four-week period Mr Guinea was put back into the recruitment pool and she agreed. It was put to Ms Kemp that the recruitment pool could include new employees and she agreed. It was put to Ms Kemp that Workpac would not give preference to one person over another in that pool and would pick the best person for the job and she agreed.

7 July 2020 letter from WorkPac and phone call with Mr Proefke

[58] Mr Guinea said he did not work his rostered shifts from Thursday 2 July 2020 – Wednesday 8 July 2020. Mr Guinea said on about 7 July 2020 he received a letter from Mr Phil Wheatley from Workpac, a copy of which was provided to the Commission. 3 Ms Kemp said that on 7 July 2020, she emailed Mr Guinea a letter confirming the matters discussed on 30 June 2020, including that:

(a) the client had undertaken a restructure at the Mine and as a result reduced its personnel requirements;

(b) the client advised WorkPac that it no longer required Mr Guinea's role and that his assignment came to an end on 30 June 2020;

(d) he would be paid in lieu of notice and during his notice period, WorkPac would undertake a review of any available vacancies and would revert to him to discuss the particulars of same.

[59] Ms Kemp stated that while the letter said that Mr Guinea would be paid in lieu of working out his notice, “this just meant that he was not required to work at the Mine during that period”. Ms Kemp noted that Mr Guinea remained an employee during his notice period, and Workpac looked for redeployment options throughout.

[60] Ms Kemp understood and believed that on 7 July 2020, in response to a telephone message left by Mr Andrew Proefke regarding Workpac job opportunities, Mr Guinea telephoned Mr Proefke and informed him that he would like to be kept up to date with other Workpac positions that were suitable to him and could commence work as soon as possible. Ms Kemp understood that Mr Proefke informed Mr Guinea that he would work to identify job opportunities.

[61] Ms Kemp agreed that the next communication (after the discussion on 30 June) was the email of 7 July described at paragraph 24 of her first statement and the third communication was the conversation between Mr Guinea and Mr Proefke on 7 July where Mr Guinea advised he would like to be kept up to date with other Workpac positions and Mr Proefke said he would do that.

8 July conversation with Ms Felicia John

[62] Mr Guinea said on about 8 July 2020 he received a telephone call from someone at Workpac and believed her name was Fiona. He said words to the following effect were said:

Fiona: Would you be interested in a job at Cavil Ridge?

Mr Guinea: For sure, as long as its FIFO.

Fiona: It is. I will put you forward. Expect it to take a couple of weeks, they move pretty slow over there.

[63] Ms Kemp said that she understood and believed that on 8 July 2020, Ms Felicia John from Recruitment at WorkPac telephoned Mr Guinea and asked if he was happy for Workpac to submit his details to the Caval Ridge site; and she understood that Mr Guinea agreed. Ms Kemp agreed in her oral evidence this communication between Ms John and Mr Guinea on 8 July was the fourth communication with Mr Guinea.

[64] Mr Guinea said that other than the conversations as described above, he did not believe there were any meetings or discussions between Workpac and himself about the reasons for any reduction in labour at the Daunia Mine, his proposed redundancy or about any measures that Workpac were taking to avert or mitigate the adverse effects of any reduction in labour at the Daunia Mine.

[65] Mr Guinea said following the conversation recorded above with ‘Fiona’, WorkPac did not tell him how his application for any vacant role at Caval Ridge had progressed or the reasons for that application being unsuccessful.

[66] Ms Kemp said that she subsequently received feedback that Mr Guinea’s application for a role at the Caval Ridge site could not progress as Mr Guinea was not able to travel into Queensland to perform the role, in light of COVID-19 border restrictions.

[67] Ms Kemp was asked whether that was the extent of communication between Mr Guinea and Workpac in the four-week period and she agreed. Ms Kemp was asked whether a role at Peak Downs and a role at Goonyella were available at that time and she said she was unaware.

[68] Mr Guinea’s employment with Workpac was terminated on 28 July 2020 and he was later issued with a separation certificate, a copy of which was also provided to the Commission. 4 Mr Guinea said he was paid his normal wage during the period 30 June 2020 to 28 July 2020, and on termination received a gross amount of $16,612.00.

[69] Mr Guinea said that he was not provided any feedback by Workpac as to why he could not be redeployed to the role at the Caval Ridge Mine.

[70] Mr Kemp was referred to paragraph 30(a) of her first statement and the three positions Mr Guinea identified in his second statement. In relation to the third role at Caval Ridge, Ms Kemp said the job order was cancelled on 15 July. Ms Kemp said the role was cancelled because it was an error. Ms Kemp said it was a Workpac error and it could have been for multiple reasons and she could not recall the exact reason.

[71] Ms Kemp was referred to her first statement where she said that on 8 July 2020 Ms John from WorkPac telephoned Mr Guinea. Ms Kemp said she subsequently received feedback that Mr Guinea’s application could not progress because he was not able to travel into Queensland because of border restrictions. Ms Kemp was asked if one of her colleagues had discussed the job at Caval Ridge with Mr Guinea and she confirmed this discussion took place prior to 15 July 2020.

[72] Ms Guinea was then asked whether BMA recruited for an operator position at the Caval Ridge Mine prior to the cancellation of the position at Caval Ridge on 15 July and Ms Kemp said they did. It was put to Ms Kemp that there was a vacant position at the Caval Ridge Mine prior to 15 July 2020 and it was filled by Workpac. Ms Kemp confirmed it was an operator position.

Other Roles

[73] Ms Kemp said she has been provided with two spreadsheets which identify the roles where advertisements were place by Workpac on Seek during the period 30 June to 28 July 2020:

(a) The first is for roles in Queensland in certain classifications, noting the restrictions in place regarding travel into Queensland from New South Wales; 5 and

(b) The second identifies roles in New South Wales in certain classifications. 6

[74] Ms Kemp said that no other opportunities were identified for Mr Guinea in that period, because regarding mining roles:

(a) As a result of the travel restrictions in relation to the COVID-19 pandemic, Mr Guinea was prevented from entering Queensland and as a result, could not be put forward for jobs in Queensland;

(b) Although there were limited mining roles in New South Wales, those roles were not FIFO roles (the only FIFO-based sites were at Daunia Mine and Caval Ridge Mine in Queensland) and the NSW mines had 'fatigue' restrictions in relation to travel to and from those operations. Based on Mr Guinea's principal place of residence (Tweed Heads), he would have been required to move from his home.

[75] Ms Kemp said in her reply statement that she was not advised at any time by BMA that Mr Guinea was able to travel into Queensland to perform his role at the Daunia Mine while the Queensland health directives were in place. Ms Kemp said she was aware that Mr Guinea did travel to the Daunia Mine and performed work for one swing while the restrictions were in place. She said however her understanding of the border restrictions was that it was not possible for Mr Guinea to travel from his home in Tweed Heads to Brisbane and then fly to perform work at the mine because, as a result of his classification, he was not a ‘Critical Resources Sector Employee’. Ms Kemp said that she was unaware of how he was able to “negotiate” this issue when he crossed the border and confirmed her belief that he was not in a category of workers who was allowed at that time to cross the border.

[76] Ms Kemp said that it was because of those restrictions that the “vast majority of roles in Queensland (and especially those in the Bowen Basin)” were not available to Mr Guinea from 30 June 2020 to 28 July 2020.

[77] Ms Kemp further stated that client approval is required before a proposed employee can be offered a role by Workpac. Ms Kemp said this is particularly the case for mining roles, as there are usually site-specific processes, which can include medicals, that need to be undertaken before an employee would be allowed on site.

[78] Ms Kemp said that as Workpac had not obtained an alternative role for Mr Guinea, his employment therefore came to an end on 28 July 2020 in accordance with the letter sent to him on 7 July 2020.

[79] Ms Kemp understood that Mr Guinea was paid a redundancy payment equivalent to 12 weeks’ pay.

Accommodation in Brisbane provided by BMA

[80] Mr Guinea said that he was told that Workpac provided accommodation in or around Brisbane to some of its employees that resided in New South Wales who were otherwise unable to work in the coal mines in Queensland due to the border closure. He understood that such accommodation was provided to these employees during their rostered days off, which meant that these workers were able to temporarily relocate to Queensland and maintain their employment. Mr Guinea said however, no such assistance was ever discussed or offered to him.

[81] It was put to Mr Guinea that BMA had a fund to help compensate people who could not work because of COVID-19. Mr Guinea said he received one week’s pay but he was not told it was out of a fund. He said he did think it was from BMA and it was because he could not cross the Border to get to work.

[82] Ms Kemp was asked if she was aware that prior to her discussion with Mr Guinea on 30 June that he had successfully crossed the border into Queensland to work his last swing and she said she was aware of that. It was put to Ms Kemp that she suggested at paragraph 31A of her statement that he could not be put forward for any jobs in Queensland because he could not cross the border. Ms Kemp said that was her understanding at the time.

[83] It was put to Ms Kemp that no one from Workpac had asked Mr Guinea how he had crossed the Border on the previous swing and she said not that she could recall. Ms Kemp was asked if anyone from Workpac had discussed with Mr Guinea in the four-week period any options to assist him in crossing the Border and she said not that she was aware of. It was put to Ms Kemp that Workpac had assisted some employees in New South Wales by putting them up in a hotel in Brisbane. Ms Kemp said it was not Workpac it was BMA.

[84] It was put to Ms Kemp that employees from New South Wales commuted up to Queensland coal fields and Ms Kemp said a couple of employees of Workpac were accommodated by BMA in hotels in Brisbane on their seven days off at BMA’s expense. Ms Kemp said this was only at Daunia Mine as far as she was aware. Ms Kemp was asked why this option was not discussed with Mr Guinea and she said that Mr Guinea was already back in NSW when this was announced by BMA. Ms Kemp said she has since found out that operated from 4 May.

[85] Ms Kemp was asked in re-examination if she was aware of any examples of BMA putting employees up in a hotel other than employees who were in Queensland at the time and between their swings, for example an employee who has been displaced and she said no.

Redeployment opportunities and travel restrictions

[86] Mr Guinea said he was unaware of any concrete steps that Workpac took to redeploy him into another suitable role. Mr Guinea’s evidence was that the conversation with ‘Fiona’ about the potential role at Caval Ridge was the extent of any redeployment efforts made by Workpac.

[87] Mr Guinea said during his notice period, Workpac did not seek to discuss his skills or work experience. He said there appeared to have been no consideration given to suitable roles either elsewhere in the coal industry or outside of the coal industry.

[88] Mr Guinea said he would not have accepted redeployment to a job in the coal industry in NSW and would have only considered another job in the coal industry in Queensland or a suitable job outside of the coal industry in or around the Tweed/Gold Coast area. He said Workpac made no effort to discuss whether he had the necessary skills and experience to be redeployed, for example, to any such suitable role in the Tweed/Gold Coast area such as truck driver or the like.

[89] Mr Guinea said in his reply statement he believed that he had the necessary skills and competencies, or could readily have acquired them, in respect of three roles identified in Ms Kemp’s attachment at ‘annexure JK-3’, being:

a) Job ID: 50033888 – Mechanical Haul Truck Operators;

b) Job ID: 50176298 – Haul Truck Operators; and

c) Job ID: 50206648 – Haul Truck Operator.

[90] It was put to Mr Guinea from Ms Kemp’s evidence there was a schedule of jobs that may be available, and he picked three of them and he agreed. It was put to Mr Guinea that the first job was the Mechanical Haul Truck Operator job, and if it was at Peak Downs he would not be interested in that. Mr Guinea said he thought there was a bus going to Peak Downs. It was put to him the bus would be going from Mackay, and it wouldn’t be a FIFO job and he accepted that he would have to arrange his own flights and pay for his own flights and it would expensive, particularly if he had to job share.

[91] It was put to Mr Guinea that the second job 50176298 was at Goonyella Riverside. Mr Guinea said he used to work at that mine and it was a different roster and twice the flying and he said it would be just too expensive for him.

[92] In relation to the third job 50206648, it was put to him it was at Caval Ridge but that the order for the job was cancelled and the role never proceeded. Mr Guinea said he had been hoping for that job.

[93] In oral examination in chief Ms Kemp said that the Mechanical Haul Truck Operator job was at Peak Downs, job 50176298 was at Goonyella Riverside and for the job 50206648 at Caval Ridge, the job order was cancelled.

[94] Mr Guinea disagreed that the travel restrictions associated with the Border meant that he could not have been redeployed into one of those roles. Mr Guinea confirmed his evidence that he was able to cross the Border and work in Central Queensland from 17 June 2020 to 24 June 2020, and further that he was “all set to work [his] rostered swing from 2 July 2020 to 8 July 2020 before being advised by Ms Kemp the day before [his] flight was due to leave Brisbane that [his] position was no longer needed at the Daunia Mine”.

[95] Mr Guinea stated that it may have been possible to overcome any limitations on his ‘free movement’ across the Border by entering quarantine or self-isolation in accordance with the requirements of the Queensland Government. Mr Guinea said that after a period of quarantine, he may then have been able to temporarily relocate to Queensland by, for example, residing with his family in Mackay. Mr Guinea said that if that was necessary, he would have considered this option as a means of maintaining his employment or otherwise being redeployed to another suitable role. He said however, Workpac never discussed such options with him.

[96] Mr Guinea confirmed that he would not have sought redeployment to any of the NSW based roles identified in the document marked ‘annexure JH-4’ attached to Ms Kemp’s statement.

[97] Ms Kemp said she has been provided with two spreadsheets which identify the roles where advertisements were placed by Workpac on Seek during the period 30 June to 28 July 2020:

(a) The first is for roles in Queensland in certain classifications, noting the restrictions in place regarding travel into Queensland from New South Wales; 7 and

(b) The second identifies roles in New South Wales in certain classifications. 8

[98] Ms Kemp said that no other opportunities were identified for Mr Guinea in that period, because regarding mining roles:

(a) As a result of the travel restrictions in relation to the COVID-19 pandemic, Mr Guinea was prevented from entering Queensland and as a result, could not be put forward for jobs in Queensland;

[99] Ms Kemp was asked during her oral evidence if there had been any discussion about any issues for Mr Guinea in crossing the border into Queensland to perform work in the four-week period between 30 June and 28 July and she said not that she recalled.

[100] Mr Guinea confirmed during his oral evidence he still lived on the Tweed and had been living there for seven years. Mr Guinea said he went to Sydney during his five weeks off as his wife worked in Sydney.

[101] Mr Guinea confirmed he had family in Mackay and had no plans to move from the Tweed. It was put to Mr Guinea that was why he was a bit selective about what jobs he would take as alternative roles. He said in response that if the job was right he would take it but a lot of the jobs up there don’t have transport from the airport to the mine site which would mean he would have to buy another car and it would not be worthwhile for him.

[102] It was put to Mr Guinea that he was also not prepared to accept a job in NSW as it does not have FIFO and he said in NSW they don’t supply housing or have a mess and he would have to rent a flat, and with his wife in Sydney and the house in the Tweed, having another house was not feasible.

[103] Mr Guinea also accepted that for him a job in Queensland would have to be FIFO as it is too far to drive and he agreed he would not relocate his home. Mr Guinea agreed that the only BMA mines that were FIFO were Caval Ridge and Daunia, and Goonyella Riverside and Peak Downs were not FIFO.

Number of employees at Daunia Mine

[104] Mr Guinea said he did not believe that the number of Workpac employees working at the Daunia Mine following his termination has decreased. He said in fact if anything, the number of Workpac employees has increased.

[105] In a reply statement Ms Kemp said that, regarding Mr Guinea’s job share role at the Daunia Mine, to the best of her knowledge Workpac has not been asked by BMA to replace that ‘full time equivalent’ role.

[106] Ms Kemp said that she is aware that two Workpac dump truck operators resigned during the period 30 June and 28 July 2020 at the Daunia Mine, however their roles were not replaced during that period.

Events following dismissal

[107] Mr Guinea said he has not found any work since his dismissal, nor has he received any income. He lives with his wife who works full-time and does not have dependents at home.

[108] Mr Guinea said he thought the job with Workpac at the Daunia Mine would see him through until retirement, and that he was planning on working for a few more years. Mr Guinea said the job was a permanent job at a relatively new coal mine, and the remuneration and having his travel arranged and paid for, along with the flexibility to job share, was very beneficial.

[109] Mr Guinea said that he had serious doubt as to whether at his age he will be able to pick up another job with anywhere near the same terms and conditions of employment.

[110] Mr Guinea confirmed he lived in Mackay for three months looking after his father until he passed away on 10 April 2020. It was put to Mr Guinea that he was in Mackay in October 2020. Mr Guinea accepted he probably took some holidays and had a month in Mackay at that time. He was asked if he had any trouble getting over the border at that time and he said no and he thought he had a border pass.

[111] Mr Guinea was asked if he recalled in the months following his redundancy in July that Workpac kept in touch with him to discuss a role that he might be suitable and he said yes he did recall that, but the roles were not suitable as they did not have buses that went out to them.

[112] Mr Guinea was asked whether he could recall having a conversation with someone from WorkPac when he was in Mackay and saying to them that he was in Mackay at the time and not really ready to accept work then and he wouldn’t be ready until he got back to the Tweed. Mr Guinea said he may have had an operation on his elbow at that time and that may have been why he was up in Mackay but couldn’t remember being there in October.

[113] Mr Guinea was asked whether someone from Workpac got in touch with him a few weeks ago on 19 January 2021 to see if he was still looking for work. Mr Guinea confirmed that was correct and he was called ‘Wayne’ and he confirmed he said the work would have to be near where he lived in Northern NSW. Mr Guinea said if there was a suitable job in the mines, he would go back up there but being nearly 65 he was past travelling all over the country. He said he would take a FIFO job at Daunia or Caval Ridge but otherwise he would have to buy a car and it wasn’t worth it for him.

[114] Mr Guinea was asked if he had looked for other work and he said he put his name down at Spinifex another labour hire employer, also school COVID-19 cleaning, and a few other local jobs.

[115] Ms Kemp stated that Workpac has engaged approximately 10 new operators on a casual basis for a three-month assignment at the Daunia Mine in back-fill roles; however these roles only became available after July 2020. During her oral evidence Ms Kemp agreed that those workers were performing similar work to that of Mr Guinea and that BMA made the request to Ms Kemp as an order by email. Ms Kemp said she could not recall the exact number but it was around 10. Mr Guinea’s representative called for the email and Workpac produced the email.

[116] The email was sent on 17 August 2020 and related to five positions. Ms Kemp was asked about the discrepancy between this and her evidence. Ms Kemp said at times Workpac could be asked for five candidates and Workpac submitted more and BMA takes more. Ms Kemp was asked if prior to receiving the email had she received any verbal indication of these roles being required and she said she could not recall. Ms Kemp was asked if it was unusual to receive an email of this nature without a prior verbal ‘heads up’ and she said no. Ms Kemp was asked when the 10 casuals started with BMA and she said she could not recall, however the ‘on-boarding’ process varies. Ms Kemp said the ‘on-boarding’ process was after 17 August and the employees started after that date.

[117] Ms Kemp confirmed the engagements were for a minimum of 3 months. Ms Kemp said she could not recall if the casual employees were still engaged at the Daunia Mine but accepted that it was possible. Ms Kemp agreed Workpac had no hard feelings toward Mr Guinea. It was put to Ms Kemp that Mr Guinea was not offered one of these roles, and she responded not that she was aware of, and that and said she does not recruit for the roles. Ms Kemp said the roles were multiskilled roles.

SUBMISSIONS

Section 389(1)(a)

[118] Workpac submitted it is the provider of labour hire to a number of coal mine operators, including BMA’s Daunia Mine, and labour is provided on the basis of the needs of BMA and that Workpac does not, itself, conduct mining operations. Workpac submitted it is the mining operator that has the authority to deploy labour and can send the labour back at any time, and that has implications for how s.389 of the Act applies in the case of a labour hire worker. Workpac accepted that the same law applies to it as other employers however the law has to be applied in a practical way.

[119] Workpac submitted that the evidence clearly shows that Mr Guinea's employment was specific to an assignment with BMA in relation to a specific labour hire contract, not 'at large' employment with Workpac to perform work for any of its clients. In that regard, the notice of offer:

(a) identifies Mr Guinea's 'assignment with 'Minau: BMA Daunia' with reference to the 'Client' as MINAU: BMA Daunia; and

(b) the 'Assignment, and your employment with WorkPac, is specific to the contract WorkPac holds with MINAU: BMA Daunia to provide personnel to the Site at the

address and location named above ("Client Contract").'

[120] Workpac submitted that BMA advised WorkPac that it was downsizing Production A and C Crews (which included the crew Mr Guinea had been engaged on). As a result, BMA advised Workpac that Mr Guinea was no longer required to perform work at the Daunia Mine. It submitted that BMA also advised Workpac that another employee of Workpac was not required at the Daunia Mine.

[121] Workpac submitted that the decisions to downsize the Production Crews at the Daunia Mine and to decide that Mr Guinea’s role at the Daunia Mine no longer existed was not made by Workpac.

[122] Workpac submitted that once BMA made the decision that it did not require Mr Guinea to perform work at the Mine Workpac was not in a position to continue to deploy him to perform work at the Mine under the terms of his notice of offer.

[123] Workpac submitted that this gave rise to a situation where Mr Guinea's job was no longer required to be performed because of a change to Workpac's operational requirements as a result of Workpac's client BMA reducing the number of labour hire workers it needed for production. Workpac submitted therefore in those circumstances, Mr Guinea's job with Workpac was no longer required to be performed by anyone and was redundant.

[124] The CFMMEU submitted for Mr Guinea that Workpac bears the onus of making good the jurisdictional objection. It is for Workpac to satisfy the Commission that:

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. (emphasis added).

[125] The CFMMEU submitted that s.389(1)(a) of the Act was not satisfied. It submitted that the job Mr Guinea held with WorkPac was a Coal Mining Operator, not aCoal Mining Operator at the Mine. It was submitted for Mr Guinea he was merely assigned to perform his job at the Mine.

[126] The CFMMEU submitted it is for Workpac to satisfy the Commission that there was a reduction in the number of such jobs – and critically – that any such reduction was motivated by operational requirements.

[127] The CFMMEU submitted it is not enough for Workpac to simply assert that any such reduction was motivated by operational requirements, and relied on the Full Bench decision in Roy Morgan Research Ltd v Baker 9 (Roy Morgan) that provides:

“It is sufficient, for the purposes of the current appeal, to draw from those authorities, that s.389(1)(a) of the Act requires the Commission to consider the evidence in relation to the changes in operational requirements relied on by the employer and reach a conclusion as to whether the changes were such that it no longer required the employee’s job to be performed by anyone. A positive finding in relation to s.389(1)(a) would require satisfaction by the Commission on the evidence and material presented to it by the parties, that the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of its enterprise.” 10

[128] The CFMMEU submitted that Ms Kemp’s evidence that BMA told Workpac to reduce numbers at the Daunia Mine does not suffice because the decision to reduce labour at the Daunia Mine is a decision that is ultimately made by BMA, not Workpac.

[129] Further, the CFMMEU submitted that the only evidence before the Commission as to the motivation for such redundancy is the hearsay evidence of Ms Kemp that BMA were downsizing. In other words, there is no actual evidence that BMA were downsizing. Rather, there is evidence that Ms Kemp was told that BMA were downsizing.

[130] The CFMMEU submitted that there is no evidence as to the motivations for BMA implementing any downsizing of the workforce, and without such evidence, the Commission cannot safely find that Mr Guinea’s dismissal was because of operational requirements.

[131] Mr Guinea did not accept his job as a Coal Mining Operator is no longer required. He submitted Workpac has not abolished that job (and made all of its Coal Mining Operators redundant). Moreover, Workpac (to the understanding of Mr Guinea) has not reduced its number of Coal Mining Operators.

[132] Mr Guinea further argued that his job is still required at the Mine. That is, it is not accepted that there has been an overall reduction in the number of Coal Mining Operators that Workpac supplies to the Mine.

[133] The CFMMEU noted in its submission that only two employees of Workpac were made redundant, and that the other employee was Mr Guinea’s job share partner. It submitted that therefore it appeared that only one FTE was removed from site, and that a one-person redundancy (in effect) at a coal mine is unusual.

[134] The CFMMEU submitted that just prior to notification of his termination, Mr Guinea had two separate exchanges with BMA Superintendents. He submitted these exchanges may seem innocuous, however that BMA had little tolerance for labour hire employees speaking up.

[135] The CFMMEU submitted that labour hire employees are removed from BMA sites with no proper explanation of the reasons for their sudden departure, and that this underscores that Mr Guinea’s termination may not have been motivated by operational reasons.

[136] The CFMMEU relies on the decision in Roy Morgan and paragraph [22] of the decision of Deputy President Gooley in the decision at first instance that said as follows:

“[22] . . . To establish that there were changes in the operational requirements of the business, there needs to be more than assertions. Mr Schwarz gave no evidence about what were the changes in the operational requirements of the business that required the creation of the Learning and Development position and the abolition of the job being performed by Ms Baker.

[23] The onus is on Roy Morgan to establish on the balance of probabilities that there were operational reasons. The evidence presented falls well short of what is required to meet that standard of proof. Ray Morgan has failed to meet that onus.”

[137] The CFMMEU asserted the total of the evidence is that BMA told Workpac that it did not require three employees. One of those was not a direct employee of Workpac.

[138] The CFMMEU submitted nothing has been offered by Workpac, or BMA as to what motivated the decision to reduce its role by one FTE and the state of evidence leaves the Commission unable to properly evaluate whether the reason was for genuine operational requirements. The CFMMEU says this is for three reasons:

(1) There is no evidence as to the selection criteria used which the CFMMEU said was unusual,

(2) No evidence for the Commission to take the view there has been an overall reduction in the number of operators at the Daunia Mine. Ms Kemp was asked this question directly and could not assist.

(3) Sometime after 17 August 2020 WorkPac recruited 10 casual workers. The CFMMEU accepted that these positions could not be considered for the purposes of s.389(2) as they came online after the time of termination, however they are relevant to the question as to whether the dismissal of Mr Guinea was motivated by genuine operational reasons. The CFMMEU submitted that this was hardly suggestive of genuine redundancy when BMA is putting people off around the same time that people are being put on.

[139] Workpac said in its closing oral submissions that the fact Workpac is a labour hire company has implications for when and in what circumstances the operational requirements of Workpac’s enterprise mean a role is redundant.

[140] Workpac submitted that Mr Guinea was a capable employee of Workpac who was available to be deployed into roles. Workpac says the role itself was not in Workpac’s enterprise, it was in BMA’s enterprise.

[141] Workpac referred to the correspondence of 7 July attached to evidence of Ms Kemp which advised that Mr Guinea’s assignment at Daunia Mine had come to an end. The letter goes on to give Mr Guinea four weeks’ notice. It was put for Workpac that the termination of the assignment by BMA did not led to the disestablishment of the role of Mr Guinea to be available for another role in Workpac. It was put for Workpac the letter did not say he was redundant however, it was clear it may jeopardise his employment.

[142] It was put for Workpac that had another role been found within the four weeks for Mr Guinea he would not have been redundant. I asked Mr Williams what I should treat as the date when Mr Guinea was made redundant, and Mr Williams said it was 28 July. WorkPac accepted that “was not perfectly documented”. WorkPac submitted that it did not make a decision that Mr Guinea’s position was no longer required to be performed by anyone because of operational requirements within its enterprise until 28 July 2020. Workpac submitted there is a difficulty of laying a labour hire business model against the requirements of s.389(1)(a).

[143] I have considered the respective submissions and I reject Workpac’s submission that Mr Guinea was not made redundant until 28 July 2020. On the one hand Workpac argues in accordance with Ms Kemp’s evidence that Mr Guinea was employed by Workpac on a specific assignment to perform work at the Daunia Mine as a mobile plant operator, and he was not employed at large by Workpac.

[144] Ms Kemp gave evidence Mr Guinea was told by her in a telephone call on 30 June that his position at Daunia Mine was redundant and he was given four weeks’ notice. Further that during those four weeks Workpac would look for other roles and if none could be found his employment would come to an end.

[145] On the other hand, Workpac argues this communication of the ending of his employment at the Mine did not mean his job was redundant. The difficulty with Workpac’s argument is the clear language in the offer of employment and the evidence of Ms Kemp that she told Mr Guinea his position was redundant on 30 June. The letter of offer of 3 September 2019 included the following:

“..This Assignment, and your employment with WorkPac, is specific to the contract WorkPac holds with MINAU: BMA DAUNIA to provide personnel to the Site at the address and location named above ("Client Contract"). This Assignment, and your employment with WorkPac, is subject to WorkPac retaining the Client Contract. Unless your employment is terminated sooner in accordance with this Notice of Offer and the Relevant Industrial Instrument, if the Client Contract comes to an end for any reason and WorkPac considers it is not reasonable to redeploy you to another position, your employment with WorkPac will come to an end….”

[146] Workpac’s argument as I understand it proceeds on the basis Mr Guinea’s job was not in Workpac’s enterprise. I do not agree with this submission. An enterprise is defined in s.12 of the Act as a “business, activity, project or undertaking.” As an employee of Workpac from whose labour Workpac derives its income Mr Guinea must fall within Workpac’s “business, activity, project or undertaking”. Workpac’s submission if accepted could mean that all of its thousands of employees who perform work at an external workplace are not within Workpac’s enterprise. That cannot be right.

[147] If it is true that BMA did make a decision to reduce its labour requirements (which is contested), then that has a consequential knock-on effect for Workpac which results in it no longer requiring Mr Guinea’s job to be performed by anyone because of changes in the operations requirements of WorkPac’s enterprise. Mr Guinea was not employed by BMA, he was employed by Workpac, and it was Workpac, not BMA that advised him on 30 June that he was redundant, and it was Workpac not BMA that later provided this advice to him in writing on 7 July.

[148] On the basis of my conclusion above I am satisfied that Workpac made a decision it no longer required Mr Guinea’s job to be performed by anyone. The question then becomes, did Workpac make the decision because Mr Guinea’s job was no longer required to be performed by anyone because of changes in the operational requirements of Workpac’s enterprise.

[149] In this case the operational requirement was the performance of work by Mr Guinea as a mobile plant operator at the Daunia Mine for Workpac’s client BMA.

[150] It is not contested that BMA, through Mr Flower, asserted to Ms Kemp sometime in late June that the job was no longer required. However, that assertion does not establish the job is not required. No one from BMA gave evidence in these proceedings.

[151] There is evidence before the Commission of Mr Guinea that Mr Flower said at a meeting on 17 June that there were going to be some layoffs, that they will be labour hire and in the order of five from each crew, and it probably won't happen for three months. In addition to that, there is the evidence of Ms Kemp that Mr Flower told her that the three Workpac positions were not required however it turned out there was only one FTE Workpac position said not to be required and that was the job share position of Mr Guinea and Mr Britton.

[152] Whilst it is possible that BMA did make a decision to implement organisational change, given the paucity of evidence it has not been established on the balance of probability.

[153] Given there has been no direct evidence called to establish that the job was no longer required, and the only evidence is the indirect evidence of Ms Kemp that Mr Flower asserted this to be the case with no other information, I cannot be satisfied that the decision of BMA to advise Workpac that it did not require Mr Guinea and Mr Britton was based on operational requirements, and not some other reason such as the difficulties Mr Guinea experienced in crossing the border in May, or Mr Britton being over 65 and therefore in a high risk category.

[154] As was submitted by the CFMMEU it would seem odd that only one FTE position of Workpac’s was not required as of late June, however 10 three-month casual contract positions were required to perform work of a similar nature in August.

[155] The evidence supports the conclusion that Ms Kemp was given no specific information from BMA to establish whether Mr Guinea’s job was no longer required to be performed by anyone because of changes in the operational requirements of BMA’s enterprise despite her asking Mr Flower for information to that effect directly. I was referred by the CFMMEU to a decision of Deputy President Asbury in the matter of Star v WorkPac Pty Ltd 11 (Star)That matter is clearly distinguishable from this matter as it did not turn on considerations under s.389 as is the case here. However, it is analogous in the sense that the decision in Star considered the extent of WorkPac’s obligations as a labour hire employer, in circumstances where its client, BMA, advised Workpac it no longer requires the services of an employee of WorkPac.

[156] It would be unhelpful to conflate considerations in this matter with a determination concerning different considerations under the Act. Star is relevant to the extent that it considered the obligations of an employer engaged in labour hire to take steps to establish for itself facts relevant to considerations under the Act.

[157] If it is correct as I have concluded that Mr Guinea is an employee in Workpac’s enterprise, (contrary to the submission of Workpac) then on the basis of the authoritative decisions including Roy Morgan, Workpac did not take sufficient steps to attempt to establish for itself that Mr Guinea’s job was no longer required because of operational requirements. Mr Guinea had obtained a permanent job with Workpac at Daunia. A mere assertion from Workpac’s client that Mr Guinea was no longer required is not enough to establish to this Commission satisfaction of s.389(1)(a).

[158] On that basis Workpac has failed to meet the onus on it establish on the balance of probability that Mr Guinea’s job was no longer required to be performed by anyone because of changes in the operational requirements of Workpac’s enterprise to supply the labour to perform the job of mobile plant operator to BMA.

Section 389(1)(b)

[159] Mr Guinea alleged that Workpac failed to comply with its consultation obligations as set out at clause 22 of the Workpac Coal Mining Agreement 2019 (Enterprise Agreement) and thus failed to comply with s.389(1)(b) of the FW Act.

[160] Workpac submitted that the requirement to 'consult' in clause 22 was not triggered in this instance because there was no relevant decision by Workpac to introduce a 'major change to production, program, organisation, structure or technology in relation to its enterprise' and the 'major change to production' was a decision of Workpac's client, BMA. Workpac submitted it played no role in the decision of BMA in relation to the production levels required.

[161] The Respondent submitted that once the decision was made by BMA, and BMA identified the Workpac employees who it no longer required, there was no further decision that Workpac itself would introduce a 'major change' so as to trigger the consultation obligation in the Enterprise Agreement. The Respondent submitted it was simply the case that the two affected employees, including Mr Guinea, would no longer be required at the Mine from about 30 June 2020 onwards.

[162] Workpac submitted that to the extent it is argued that Workpac's subsequent notice to its employees that BMA no longer required the two affected employees to perform work at the Mine triggered the consultation obligation, that was rejected.

[163] Workpac submitted that the decision to terminate the affected employees was not because of any change to the operations of Workpac's enterprise. It submitted that where the affected employees could not be deployed further to their particular assignment, the decision to provide notice of termination does not fall within the scope of a 'definite decision to introduce a major change to production etc.' Workpac submitted it was instead an inevitable result of Workpac's client identifying that the affected employees were no longer needed as labour hire at the Mine.

[164] Workpac submitted that in the event the Commission were to find that WorkPac's 'decision' to terminate the employment of Mr Guinea amounted to a major change to production, program, organisation, structure or technology in relation to its enterprise, no decision to terminate any of WorkPac's employees was made until after Workpac had received confirmation on 30 June 2020 that two specific labour hire employees were no longer required from Workpac. Workpac submitted that is the 'definite decision' which would trigger the consultation clause and there was no other decision by WorkPac.

[165] WorkPac submitted that subsequently on 30 June 2020 (as soon as practicable after the 'definite decision'), WorkPac:

(a) discussed with Mr Guinea the introduction of change i.e. the fact that he was no longer required by BMA to perform work on the BMA contract such that WorkPac could no longer deploy him to that work;

(b) explained the likely effect was that his employment would be terminated by way of redundancy because they were no longer required by BMA to provide labour on the BMA contract; and

(c) discussed that a recruiter would be in touch to discuss potential opportunities to avert or mitigate the likely termination.

[166] Workpac submitted that is precisely what is required under clause 22.3.1 of the Enterprise Agreement. Workpac said it then wrote to Mr Guinea on 7 July 2020 providing further information to him about the finalisation of his assignment at the Daunia Mine. The letter states Mr Guinea would be paid in lieu of notice, which WorkPac submitted was intended as a reference to the fact that Mr Guinea was not required to attend for work at the Daunia Mine.

[167] Workpac submitted that in compliance with its consultation obligations and in order to seek to mitigate the effects of the ending of Mr Guinea’s assignment to the Daunia Mine, WorkPac had the following discussions with Mr Guinea about being put forward for alternative roles:

(a) 7 July 2020 – A representative of WorkPac contacted Mr Guinea to discuss possible alternate assignment options.

(b) 8 July 2020 – A representative of WorkPac contacted Mr Guinea and confirmed Mr Guinea’s details would be submitted to BMA Caval Ridge.

[168] WorkPac submitted that clause 22.3 of the Enterprise Agreement does not require WorkPac to explore every conceivable mitigation possibility and discuss every potential with the effected employees. If that was the requirement it is hard to see how WorkPac could ever comply.

[169] WorkPac submitted that instead, clause 22.3 simply requires WorkPac to discuss with the affected employees the measures that WorkPac is taking to avert or mitigate the adverse effect.

[170] To that end, there were discussions about possibly alternative assignments on 7 and 8 July 2020. Unfortunately, and Mr Guinea was not able to be put forward for an alternative role at a BMA mine given the COVID-19 travel restrictions in place at that time.

[171] Workpac submitted that upon further review of Mr Guinea’s details it was identified that his principal place of residence was in New South Wales. At the relevant time, the Queensland – New South Wales border was closed due to the COVID-19 pandemic. WorkPac submitted that in the absence of Mr Guinea being able to obtain an essential services exemption to cross the border into Queensland, he could not be submitted for any other roles in Queensland.

[172] Further, Workpac submitted that it was identified that Mr Guinea could not be submitted to any BMA Sites on the basis that BMA had implemented “High Risk Restrictions” and Mr Guinea fell into this category.

[173] Workpac submitted that to its knowledge, Mr Guinea only had experience as an operator within open cut coal mines and did not otherwise disclose other competencies or qualifications which could have assisted Workpac in identifying alternative roles other than those within the coal mining industry.

[174] Workpac submitted that having not been able to identify an alternative position to redeploy Mr Guinea to during his notice period, his employment was terminated on 28 July 2020. Mr Guinea was paid 12 weeks’ pay upon termination as a result of his employment being terminated by way of redundancy.

[175] Workpac submitted that Mr Guinea had an opportunity to discuss being put forward elsewhere and this was the meaningful opportunity for Mr Guinea to present his views about redeployment before the termination took effect. Workpac submitted therefore that to the extent a consultation obligation under the Enterprise Agreement was triggered it was complied with.

[176] In closing oral submissions Workpac submitted that the fact of Workpac being a labour hire company has implications for the requirements of s.389(1)(b) for the level, degree and starting point for consultation when in most circumstances the decision that leads to the redundancy is not the labour hire companies to make.

[177] Workpac submitted that it has a different explanation to the CFMMEU for how s.389(1)(b) operates. Workpac said it would have been easier had Mr Guinea been terminated and paid in lieu of notice. Workpac accepted that were it to found there was a requirement to consult contrary to its submission then there would be a difficulty in it satisfying s.389(1)(b) however its position is the requirement to consult was not triggered.

[178] In closing submissions Workpac accepted there was not great consultation between 30 June and 28 July, however it is highly speculative as to whether this would have led to anything, particularly given Mr Guinea’s commitment to living in New South Wales, his refusal of roles in New South Wales and limits Mr Guinea placed on roles he would consider. WorkPac said consultation is a two-way street and Mr Guinea also had the opportunity to talk to WorkPac about a preparedness to for example change his residence.

[179] WorkPac submitted the bar is higher now for consultation for the purposes of s.389(1)(b) given the words in the Enterprise Agreement. WorkPac referred to the Full Court decision in Port Kembla Coal Terminal Ltd and Another v CFMEU 12(Port Kembla) with specific reference to the decision of Jessop J para 186 for the purposes of the meaning of major change. WorkPac noted the CFMMEU submission that it is not about numbers, however on the facts of this case this was not a major change. WorkPac submitted Vice President Gostencnik accepted this in CEPU v Jemena Asset Management Pty Ltd13(Jemena) , and therefore the consultation provision was not triggered.

[180] Workpac submitted that consultation is supposed to occur before the decision is made, however it cannot consult beforehand if it does not make the decision. There was a heads up by a BMA superintendent.

[181] Workpac submitted BMA’s reasons were not relevant to the redundancy in its enterprise. Workpac said the business model (of labour hire) has negative aspects as it does not control the decision or criteria, however the positive is it does not lead to the inevitable termination of employment.

[182] The CFMMEU submitted that in effecting the dismissal, WorkPac manifestly failed to comply with its obligations arising from clause 22 of the WorkPac Coal Mining Agreement 2019.

[183] The CFMMEU submitted that on providing the letter dated 7 July 2020 (as required by clause 22.3.2 of the Agreement), WorkPac was required (by clause 22.3 of the Agreement) to hold discussions with Mr Guinea (and any other affected employees), however that there were either no such discussions or the discussions that occurred were not sufficient to comply with clause 22.2 of the Agreement.

[184] The CFMMEU referred to decision in CEPU v QR Limited 14 and CPSU v Vodafone Network Pty Ltd15 and submitted these cases demonstrate that consultation requires the employer to provide affected employees with a meaningful opportunity to express their views and put proposals to avoid or minimise the dismissals, and to mitigate the adverse effects of the major workplace change proposed by the employer. The employer must then give genuine consideration to any such views or proposals advanced by the employees.

[185] The CFMMEU submitted the plain and ordinary words found in clause 22 of the Agreement expressly contemplates that consultation involves such a process and that this is evident from clauses 22.3 & 22.6 of the Agreement. The CFMMEU submitted therefore that WorkPac failed to meet its obligation to consult.

[186] The CFMMEU submitted Mr Guinea received a telephone call (on 30 June 2020) and then a letter (on 7 July 2020), which merely notified him that his assignment at the Daunia Mine had come to an end. The CFMMEU submitted there were at least one telephone call thereafter, which gauged Mr Guinea’s interest in another role at the Caval Ridge Mine. The CFMMEU submitted that following this WorkPac did not provide any feedback to the Mr Guinea about any such role at Caval Ridge. The CFMMEU submitted there was plainly no discussion of a kind required by clause 22.3.1 of the Agreement.

[187] The CFMMEU submitted that WorkPac gave minimal consideration to redeployment, and that the discussions required by clause 22.3.1 of the Agreement should have concerned redeployment to suitable alternative roles elsewhere in the coal industry in Queensland, and in other industries close to Mr Guinea’s home.

[188] The CFMMEU submitted that given the nature of WorkPac’s business there is every chance that he could have been successfully redeployed to another suitable role, and that at the very least, these are matters that should have been discussed with him.

[189] The CFMMEU submitted in accordance with the decision in Port Kembla Coal the question of whether there has been a major change should not be considered in the context of the number of employees selected. The question is to be answered by reference to the words in the WorkPac Agreement, and clause 22(a) and 22(b) are the trigger, and the question is whether the decision to terminate Mr Guinea and Mr Britton is a major change, and clause 22.7.1 says termination falls within the meaning of major change, and 22.7.8 also refers to restructuring of jobs, again without nominating the number required.

[190] The CFMMEU said the purpose of the clause is clear, that in cases of termination, particularly redundancy there is a requirement to consult under the Agreement. Mr Guinea was employed for 5 and a half years and the obligation at clause 22.3. of the Agreement was not met. The evidence of Ms Kemp was at the end of a four-week period there were four points of communication. The first was a phone call on 30 June where Mr Guinea was merely told he was terminated. The second was an email. The third was a conversation that did not fall within 22.3(c), and the same with the fourth communication. The third communication was from Ms Johns asking if he wanted to be put forward for Caval Ridge. The evidence was there was no follow up about this despite evidence that a view had been taken that he could not cross the border.

[191] On the basis of my finding above regarding section s.389(1)(a) that WorkPac had made a decision that Mr Guinea’s job was no longer required to be performed by anyone because of changes in its operational requirements as of 30 June 2020, I am satisfied that WorkPac was required to consult with Mr Guinea about that decision. I accept the submission that whether a requirement to consult is necessary turns on the words in the particular Enterprise Agreement, and in this case termination of employment falls within the meaning of major change as defined in the relevant Enterprise Agreement. The language in the relevant Enterprise Agreements and facts are is distinguishable from those that were considered in the decisions in Port Kembla and Jemena

[192] On the basis of the evidence I am not satisfied that the four communications that occurred between Mr Guinea and representatives of WorkPac between the dates of 30 June and his termination on 28 July met the consultation obligations under the Enterprise Agreement to seek to mitigate the effects of Mr Guinea’s role no longer being required. The first two were directed to advising him his role was no longer required, and of the latter two, the discussion with Mr Proefke which was general in nature and the discussion with Ms John was confined to asking Mr Guinea whether he would accept a role at Caval Ridge Mine where he said he would. On the evidence of Ms Kemp an available role at Caval Ridge which from the evidence Mr Guinea would have been suitable for was filled by another employee of WorkPac at some point between 30 June and 15 July. This role was not discussed with Mr Guinea.

[193] It is apparent that WorkPac did not give Mr Guinea an opportunity to explore with it all options that may have been open to him as an alternative to termination and on that basis WorkPac has not complied with the obligations under the Enterprise Agreement to consult about the redundancy.

Section 389(2)

[194] It was not disputed that WorkPac is still providing labour hire to BMA to perform work at the Daunia Mine.

[195] WorkPac submitted that its client, BMA, no longer required the same number of labour hire workers from WorkPac as a result of the change to production levels at the Daunia Mine. Workpac submitted the number of its employees required as labour hire by BMA reduced by two. Given my finding regarding s.389(1)(a) this claim has not been established.

[196] WorkPac submitted that once BMA made the decision that it no longer required the two employees (which included Mr Guinea), WorkPac was not in a position to continue to deploy those identified employees to perform work at the Daunia Mine under the specific terms of their notices of offer. WorkPac submitted that gives rise to a situation where the identified employees' jobs are no longer required to be performed because of a change to its operational requirements as a result of its client reducing the number of labour hire workers it needed for production.

[197] WorkPac submitted it did not have any available roles into which it could deploy Mr Guinea at other mines, however it did take the steps available to it to discuss with Mr Guinea the available opportunities at other mining operations, having regard to Mr Guinea’s geographical location, the travel restrictions at the relevant time and the restrictions implements at other BMA mine sites.

[198] WorkPac submitted that it characterises the role, job and enterprise, as the job was in WorkPac as someone who stands ready, and made a similar submission to the one made concerning s .389(1)(a), that the roles themselves are not in BMA’s enterprise.

[199] Mr Williams submitted that when he acts for a mining operator the CFMMEU argues that the Mining operator should regard roles of labour hire employees as being in the coal miner’s enterprise for the purpose of s.389(2). It is argued that since the decision of Deputy President Lawrence in Teteria and anor v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine (Teteria) 16and the unsuccessful appeal of that decision in matter17 labour hire roles would be said to be in BMA’s enterprise. Therefore it was put that the CFMMEU can’t have it both ways and the roles are either in the enterprise of the Mining Operator or not.

[200] WorkPac submitted that a redeployment role of a WorkPac employee is not a redeployment role in WorkPac’s enterprise, it is an opportunity in another enterprise. Workpac submitted BMA’s business, activity, project or undertakings are not WorkPac’s activities. Workpac submitted Mr Guinea’s coal hauling job is not within WorkPac’s enterprise and it cannot be in two enterprises at the same time.

[201] WorkPac submitted that the correct approach is to ask who has the power to redeploy to the role. WorkPac submitted that to ‘redeploy’ is a verb, and therefore an action. WorkPac submitted that in the decision in Technical and Further Education Commission v L. Pykett 18 (Pykett) at [25] it states the word redeploy should be given its ordinary meaning. It is something an employer has to have the authority to do on their own. The example was given in the case of associated entities where the extent of managerial integration needs to be considered for the purposes of redeployment under s.389(2) as considered in the Full Bench decision of Ulan Coal Mines Limited v Honeysett and others19 (Honeysett).

[202] WorkPac submitted it has zero capacity to decide who is redeployed and therefore it is not even relevant to enquire into the question and if there are opportunities for redeployment they exist in the mining operators enterprise.

[203] It appears to be suggested by WorkPac that the Full Bench decision in Teteria is authority for the proposition that employees of a labour hire business are not in the labour hire businesses enterprise. Teteria is distinguishable from the facts here in that Teteria dealt with circumstances where a range of possible redeployment options were considered for direct employees of the employer in that case, including whether work performed by contract labour, or labour hire employees could be considered work that could be reasonable to redeploy direct employees into.

[204] At its highest Teteria appears to be authority for the principle that redeployment of direct employees into work previously performed for the employer by employees of contractors or labour hire employees, could be work that it would be reasonable to redeploy direct employees into, depending on the particular facts of the case. It cannot be extrapolated from Teteria that employees of labour hire businesses are not working in the enterprise of the labour hire business and therefore cannot be redeployed by the labour hire business.

[205] The CFMMEU submitted the first principle is found in Honeysett 20 where the Full Bench described what is meant by redeployment and provided some guidance as to the factors that may determine whether redeployment is reasonable:

“It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy…

…While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to a conclusion that the employee was not genuinely redundant.”

[206] The CFMMEU submitted that further guidance as to the factors that may determine whether redeployment is reasonable can also be found in Honeysett that 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.

[207] The CFMMEU submitted the second principle found in both Honeysett and Pykett is that the question of whether redeployment within the employer’s enterprise or an associated entity would have been reasonable is to be applied at the time of dismissal. The third principle is that that redeployment would have been reasonable if a finding can be made, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all of the circumstances to redeploy the dismissed employee.

[208] Finally, the Full Bench in Pykett gave some guidance as to the evidence that the employer would ordinarily be expected to adduce in order to rely upon s.389 of the FW Act. In relation to s.389(2) of the FW Act, the Full Bench said that evidence “would usually include canvassing the steps taken by the employer to identify the work which could be performed by the dismissed employee.”

[209] The CFMMEU submitted that these cases make it clear that it is for the Respondent to demonstrate that the requirements of s.389(2) of the FW Act have been satisfied. That will require WorkPac to identify the steps taken to redeploy Mr Guinea. It will also require consideration of the redeployment opportunities that existed at the time of dismissal.

[210] The CFMMEU submitted that there is no reason to place an artificial limit of on any redeployment opportunities. By way of example, Mr Guinea was working in a job share role. He was only rostered to work 43.75 hours per month. The CFMMEU suggested there may be enough non-rostered overtime worked by WorkPac’s employees at the Daunia Mine to assign such work to Mr Guinea to get him at or close to 43.75 hours per month. It submitted there is also a reasonably high turnover of labour hire employees – perhaps, a vacancy may have arisen through natural attrition that could have preserved Mr Guinea’s employment. These are all factors that should have been properly considered and discussed.

[211] The CFMMEU submitted ultimately, the Commission will need to make the evaluative judgment whether it would have been reasonable in all the circumstances to redeploy the Applicant into any such roles that are identified. The CFMMEU submitted that suitable redeployment opportunities existed, and it would have been reasonable to redeploy Mr Guinea into such a role.

[212] The CFMMEU accepted the 10 casual roles WorkPac filled in August cannot be considered, and also conceded that the evidence disclosed that the positions at Peak Downs and Goonyella Riverside would not have been Mr Guinea’s preference, and the Commission could not find with certainty he would have accepted those roles on the basis of his evidence.

[213] The CFMMEU submitted that this underscores the issue concerning consultation as these roles were vacant and he had the skills to do them.

[214] The CFMMEU submitted the evidence identified a role at the Caval Ridge Mine. Ms Kemp said the job number 50206558 Haul Truck Operator at Caval Ridge Mine had been cancelled on 15 July, however in cross examination said the role was vacant prior to 15 July and had been filled by WorkPac, which leads to a finding that at the time of dismissal there was a vacant position at the Caval Ridge Mine and Mr Guinea had the skills to perform that job.

[215] The CFMMEU in referring to the scope of the term enterprise in s.389(2) submitted it cannot be the case that redeployment to a job with one of WorkPac’s clients does not amount to a position within WorkPac’s enterprise or its business. The CFMMEU questioned how it could be said that a position paid for by WorkPac but working on a site of one of its clients under the clients supervision is not within WorkPac’s business. The CFMMEU submitted WorkPac’s interpretation would deprive every labour hire employee in Australia of being able to be redeployed. The CFMMEU referred to an excerpt from paragraph [18] in Pykett which said as follows:

“[18] ….The purpose of s.389(2) is beneficial, it is to permit an employee to bring an application if the employer acting reasonably, could have retained the employee rather than terminating the employee on grounds of redundancy. That objective would have been achieved if there was work the employee could reasonably have been engaged to perform whether or not it constituted an existing identified position or job. Nor do other provisions in Part 3-2 of the FW Act suggest a different interpretation…”

[216] The CFMMEU submitted that the clause is beneficial and to construe it in such a narrow way would deprive labour hire employees of access to it. The CFMMEU submitted that it is not a binary choice as expressed by WorkPac, the Commission only needs to deal with the matter at hand, and whether WorkPac had a role at the time. The CFMMEU submitted s.389(2) applies a fair amount of discretion to the decision maker, and issues of control are a factor that may be considered in exercising the evaluative judgement, but not grounds to exclude redeployment automatically. The CFMMEU referred to Star at paragraph [99] which said as follows:

“[99] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such contractual relationships to abrogate their responsibilities to treat employees fairly. If actions and the consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the directions of another entity in effecting the dismissal.”

[217] The CFMMEU submitted the labour hire company has to take the good with the bad and cannot simply say provisions of the Act do not apply to them.

[218] I have already rejected Workpac’s submission that Mr Guinea’s job was not in its enterprise for the purposes of s.389(1)(a). I also reject the submission that an available position that Workpac is engaged by BMA to provide labour to fill at BMA’s mine site with an employee of Workpac, is not a role within Workpac’s enterprise. I also reject Workpac’s submission that such a role is not even relevant to enquire into because it cannot be a role contemplated by s.389(2) on the basis Workpac has “zero capacity” to decide who is redeployed. I agree with the CFMMEU submission that the Commission is not faced with a binary choice when such circumstances arise, and each case will turn on its own facts.

[219] I am satisfied on the basis of the evidence that a position within Workpac’s enterprise became available at Caval Ridge Mine after 30 June 2020 that Mr Guinea had the appropriate skills and experience to fill. I am also satisfied that at some point between 30 June and around 15 July, and before Mr Guinea was terminated on 28 July, WorkPac filled that job with an employee other than Mr Guinea.

[220] The question then arises would it have been reasonable to redeploy Mr Guinea into that job. The CFMMEU submitted that it is obvious from paragraph 29 of Ms Kemp’s statement that Mr Guinea was not successful in being redeployed to that role because of issues with the border, and Ms Kemp made that clear in her statement. The CFMMEU said according to the Pykett decision 21 the time at which it needs to be decided whether it reasonable was the time of termination on 30 June.

[221] Workpac submitted that the COVID-19 pandemic is also relevant to whether there was a redeployment opportunity, and whether redeployment was reasonable in all of the circumstances. As Mr Guinea lived in New South Wales and was not prepared to consider roles in NSW because FIFO didn’t exist in New South Wales, Mr Guinea would have needed to find accommodation and therefore such positions didn’t arise as reasonable redeployment opportunities.

[222] WorkPac submitted that the evidence was that Mr Guinea would consider an available role in Queensland however only if it was a FIFO role and only if the costs of the flights were paid for by someone other than him, and that circumstance only existed at Caval Ridge, and Daunia Mines and not at Peak Downs or Goonyella Riverside Mines.

[223] WorkPac said at the time the assignment was terminated and consideration was given to other roles, he was a resident of New South Wales, the opportunities were not close to the border but in Central Queensland, and in order to accept them he needed to cross the border, go to an airport and catch a plane, travel to the mine, be deployed to work and then go back to the residential camp and live and exist in that community. WorkPac said as of 10 July 2020 that was not permitted.

[224] WorkPac said the CFMMEU interpreted ‘exempt resident’ such that it would allow Mr Guinea to travel to work. WorkPac said that was not its understanding or anyone else’s understanding at the time. WorkPac submitted that there was a discussion about this before July 2020 and Mr Guinea was unable to work a couple of swings because the definition of ‘exempt person’ did not cover him.

[225] WorkPac said it understood this was consistent with the evidence concerning what Queensland Health said to Mr Guinea and it was only referred back to Mr Guinea’s employer for the purposes of deciding whether he was an ‘exempt person’, not whether as a Tweed resident he could travel across the border without qualification.

[226] WorkPac submitted that the definition of ‘exempt person’ was based on specialist skills or duties as defined, and it is common ground as between WorkPac and Mr Guinea that he was not an ‘exempt person’. The only basis he could cross the border was as an ‘exempt resident’.

[227] WorkPac submitted Mr Guinea may have been entitled to cross the border as an ‘exempt resident.’ WorkPac said nobody in June or July 2020 was proceeding on the basis he was an ‘exempt person’. WorkPac submitted that it is ambiguous and confusing however the conclusion must be Mr Guinea may have bene entitled to go to Surfers Paradise if he returned to his own residence, however he was not entitled to travel into central Queensland and stay there.

[228] WorkPac referred to the following excerpts from clause 10 subclause 2 of the definition of ‘Exempt Resident’ in the 5 May to 3 July Border Restrictions Direction (No.5):

(1) The heading reads “People living and working close to the border of New South Wales..”. WorkPac submits Mr Guinea lived close to border but he did not work close to border.

(2) Subclause 2(c) reads “enters Queensland by crossing a land border” which WorkPac submits means it is not intended a person could fly, and

(3) Subclause 2(d) reads “does not propose to stay in Queensland for longer than reasonably necessary for the permitted purpose or to obtain essential goods or services.”

[229] WorkPac submitted an ‘exempt resident’ was not intended to cross the border and then catch a flight. Whilst awkwardly worded, the purpose was to protect people from a COVID risk and was intended to deal with genuine disadvantage caused by someone who in their day to day lives on one side of the border and works just over the border.

[230] WorkPac submitted therefore that at end June 2020 and until 10 July Mr Guinea, consistent with his own belief could not travel to do his job. WorkPac referred to the BMA fund that Mr Guinea qualified for on the basis that he could not travel to Moranbah.

[231] WorkPac submitted that it appears Mr Guinea did cross the border on one occasion however given the confusion at the time this is not surprising however it would have been in breach of the directive at the time. Workpac submits it appears that on 10 July 2020 to 8 August 2020 there was a relaxation and during that period Mr Guinea could have travelled inside Queensland, however it is easier in hindsight, and there was enormous uncertainty during that time. WorkPac accepts that the period 30 June to 28 July is a relevant period, however by 8 August the shutters were back up again.

[232] The CFMMEU maintained its position that Mr Guinea was entitled to cross the border whilst he was employed. The CFMMEU relied on Mr Guinea crossing the border on 17 June and going to work having obtained a border pass, however the border pass was not produced in evidence. The CFMMEU said there is not a basis to find against its submission that up until 8 August he could travel within Queensland, however conceded from 8 August 2020 he would have been unable to do so for an extended period.

[233] The CFMMEU said under Border Restriction Direction (BRD) number 5 from 5 May to 3 July 2020 Mr Guinea fell into the category of an exempt resident under item 5 as a person living or working close to the border and satisfies item 10(2)(b) to travel to Queensland for a permitted purpose, in his case to perform work.

[234] In relation to BRD number 6 the CFMMEU referred to item 11, a requirement to quarantine unless an ‘Exempt person’ and Mr Guinea was an ‘Exempt person’ on the basis of item 16 subdivision 10 because of where he lived. The CFMMEU submitted the only restriction was item 7(a) or (b) in reference to the definition for ‘Exempt person’. There as no evidence to support a finding Mr Guinea fell within the meaning of the term ‘critical resources sector employee’.

[235] The CFMMEU submitted BRD number 7 applying from 8 July to 10 July was identical to number 6, and BRD number 8 opened up the ability for Mr Guinea to travel in Queensland as he had not been in COVID-19 hotspot. The CFMMEU accepts that Mr Guinea was not performing an essential activity however it was not until 8 August that where he lived became a COVID-19 hot spot and this extended until 3 November 2020.

[236] Having considered the evidence and the submissions I prefer Workpac’s interpretation of the distinction between an ‘Exempt Resident’ as described in the relevant Public Health Directions, and an ‘Exempt Person’. It seems common ground that Mr Guinea was not a ‘critical resource sector employee’. It is unfortunate that Mr Guinea could not produce the permit that he referred to that he relied upon to cross the border, however it is seems clear from the evidence including his own that he was not an ‘exempt person’ as defined in the Public Health Directions.

[237] It is apparent from the language that for an ‘Exempt Resident’ work was permitted close to the border but not otherwise. On that basis I am satisfied Mr Guinea as an ‘Exempt Resident’ would have been permitted to travel over the land border for purposes defined including to obtain essential goods or services or perform a job within an area colloquially referred to as a ‘bubble’, but he would not have been permitted under the Public Health Directive to travel to an airport inside Queensland and then board a plane to Central Queensland to perform a swing. Such a right was intended to be confined to those that fell within the meaning of an ‘exempt person’.

[238] On that basis I am satisfied that except for a window between 10 July and 8 August that Mr Guinea could have travelled within Queensland, it is apparent he would not have been able to accept an offer of another position.

[239] Workpac submitted if the Commission was to find there was a redeployment opportunity, and it was a reasonable opportunity, the difficulties would have arisen again on 8 August. Workpac submits with the benefit of hindsight there was a very limited period when Mr Guinea could have worked up to 8 August 2020.

[240] Workpac submits that evaluating the circumstances at that point, even if a role was available in early July 2020 at Caval Ridge it is speculative as to whether Mr Guinea could have ever taken up the role.

[241] Workpac submits in the alternative that with the benefit of what the Commission now knows, a role at Caval Ridge could not have been a reasonable redeployment opportunity. WorkPac submits it is clear he would not have accepted the Peak Downs and Goonyella roles, had they been offered to him.

[242] The CFMMEU submits that Mr Guinea just went back into the redeployment pool with who knows how many other candidates and on the basis of Honeysett that does not ‘cut the mustard’.

[243] The CFMMEU accepted that from 8 August Mr Guinea would have been unable to travel across the border. It is put for Mr Guinea the Caval Ridge job existed, he would have accepted it, he had the skills and he would have been able to attend work.

[244] On the basis of the available evidence I am satisfied Mr Guinea would not have accepted the roles at either Peak Downs or Goonyella mines. The available evidence does not support a finding of any other role he would have accepted within Workpac other than a FIFO role at either Daunia or Caval Ridge. The only available role was at Caval Ridge. I am satisfied he would have accepted the role that was available and filled by Workpac at Caval Ridge had it been offered to him. I have rejected WorkPac’s argument that the job at Caval Ridge should not even been considered as it is not within its enterprise.

[245] It is necessary to make an evaluative judgement as to whether it would have been reasonable in all of the circumstances for Mr Guinea to have been redeployed by WorkPac into the role at Caval Ridge. Two issues arise, the first being the extent of WorkPac’s power to redeploy Mr Guinea into the job, and the second is whether it would have been reasonable given the border restrictions.

[246] On the basis of Ms Kemp’s evidence Ms John submitted Mr Guinea’s name for work at Caval Ridge on 8 July 2020. Ms Kemp said she subsequently received feedback that Mr Guinea’s application could not progress because Mr Guinea could not travel into Queensland to perform the role. Mr Kemp said job 50206648 was cancelled on 15 July however conceded an operator job had been filled by WorkPac at Caval Ridge prior to this. There is no evidence as to the nature of discussions between WorkPac and BMA about the specific date this job was filled. Given Ms Kemp’s evidence that the job was filled before 15 July, then if the job was filled between 30 June and 10 July WorkPac’s submission that Mr Guinea was unable to travel to perform the role is correct. Under the Public Health Directions Mr Guinea had been unable to travel to perform his job from 5 May until 10 July. If the job was filled in the four-day window between 11 July and 14 July, he would have been able to travel.

[247] I have not been convinced by WorkPac’s argument that it would not have been reasonable to redeploy Mr Guinea into the role at Caval Ridge because it had no power to do so. The evidence is Ms John put Mr Guinea forward on 8 July and there is no evidence from Workpac that BMA would have rejected Mr Guinea for a reason such as his conduct or performance. Putting to one side the border restrictions issue, it seems more likely than not that Mr Guinea would have obtained the position at Caval Ridge had he been the only name put forward by WorkPac on the basis that it communicated to BMA that it was seeking to redeploy him to the available position WorkPac was being asked to fill by BMA. There is no evidence WorkPac made any such representation to BMA. Had there been evidence that WorkPac had made such a representation to BMA and it had been rejected by BMA that would be a different matter. These circumstances are similar to those that were the subject of a recent decision of Commissioner Riordan in Botiki and Ors v Workpac Mining Pty Ltd 22 where it was found a labour hire employer should have put to its client that it was obligated to seek to redeploy a displayed employee, rather than offering a displaced employee to its client on the same basis as other employees in a recruitment pool.

[248] I have however reached a different conclusion regarding the travel restrictions. I have concluded Mr Guinea was unable to travel to do his job from 5 May to 10 July 2020 on the basis of Public Health Directions. There was a brief window of time of about 4 days when, although not entirely clear on the evidence, it is possible a position at Caval Ridge was yet to be filled and Mr Guinea could have been successfully nominated by Workpac to fill it.

[249] In the exercise of my discretion however after having considered all of the available evidence and the circumstances, I am not satisfied that it would have been reasonable for Mr Guinea to be redeployed into the Caval Ridge job given I cannot be satisfied on the evidence that the position was not already filled before the commencement of the four day window, and also the fact of Workpac’s reasonable belief that Mr Guinea could not be deployed into the role given it has been shown to be correct that he was unable to report for work from 5 May up until 10 July. In accordance with the Public Health Directive, he would not have been able to travel to Caval Ridge as at 8 July which was the date Ms John put his name forward to BMA.

Harsh, Unjust or Unreasonable

[250] I have concluded this is not a case of genuine redundancy as Workpac has met the requirement in s.389(2), but failed to meet the requirements of s.389(1)(a) and (b). The CFMMEU submits that given the failure to satisfy subsections in s.389 then the Commission should go on to find the dismissal was unfair under s.387(h).

[251] Workpac made the concession that if Workpac had failed one of the elements of s.389, that would be sufficient to find in all the circumstances that the termination was harsh, unjust or unreasonable, however submitted that does not mean there should be a remedy. Despite the concession from Workpac it is still appropriate to address each of the elements of s.387 as they are relevant. I adopt the approach in UES and Hervey for the purposes of

S.387(a)

[252] WorkPac does not assert that the dismissal was related to Mr Guinea’s capacity or conduct and I have not been able to conclude that BMA’s reasons for communicating to Workpac that it was ending Mr Guinea’s assignment to it was related to capacity or conduct either. The set of facts are therefore distinguishable from those considered in the FWC Full Bench decision in Pettifer v MODEC Management Services Pty Ltd 23 and on that basis the better approach is to treat s.387(a) is a neutral consideration.

s.387(b) and (c)

[253] As the reason has not been found to relate to capacity or conduct the procedural fairness issues in s.387(b) and (c) are also a neutral consideration.

s.387(d)

[254] There was no suggestion that WorkPac unreasonably refused to allow Mr Guinea to have a support person present to assist at any discussions relating to his dismissal. Section 387(d) is also a neutral consideration.

s.387(e)

[255] It was not submitted nor have I found that Mr Guinea’s dismissal related to his unsatisfactory performance, so this is a neutral matter.

s.387(f) and (g)

[256] Workpac is a large employer with dedicated human resources staff. WorkPac’s size and the level of its internal expertise did not have a detrimental impact on the procedures WorkPac followed and are neutral matters.

s.387(h)

[257] On the basis of the evidence I have been unable to concluded that Mr Guinea’s job was no longer required to be performed by anyone because of changes in the operational requirements of Workpac. I have also concluded that Workpac failed to consult with Mr Guinea as required by the “consultation regarding major workplace change” clause in the Enterprise Agreement that applied to his employment. The dismissal of Mr Guinea on the basis of redundancy in circumstances where it has not been shown that his job is no longer required to be performed, and where Workpac has not consulted him about his termination as required is harsh, unjust and unreasonable.

Remedy

[258] Having found the dismissal was unfair it is necessary to determine the appropriate remedy. Mr Guinea sought reinstatement and compensation in the alternative. The CFMMEU accepted that any compensation ordered by the Commission would have to take into account that from 8 August to 3 November Mr Guinea would have been unable to report to work because of border restrictions.

[259] Workpac said a week or so ago it rang Mr Guinea and asked him if he wanted a role and he said only if it was around the Tweed or the Gold Coast. There is no evidence of such a role. Workpac submits reinstatement could only be done on the basis that he be reinstated to formal employment and paid but there is no basis for such a finding that Workpac could do anything with him, and he would be reinstated into a vacuum and this is simply impracticable.

[260] The CFMMEU accepted that there is no evidence of a vacancy at the Daunia Mine however there is some evidence in Mr Guinea’s first statement that there is a regular turn over of labour at the Daunia Mine.

[261] Mr Guinea has sought reinstatement however it became apparent from his evidence he was only genuinely interested in a FIFO position in Queensland. There was little evidence put before the Commission that such a position is currently available for him within WorkPac, other than the reference by the CFMMEU to turn over of labour at Daunia. On the limited available evidence that Mr Guinea could be reinstated into meaningful employment I am not prepared to order Workpac to reinstate Mr Guinea.

[262] The alternative remedy is compensation. Workpac submits Mr Guinea was paid to 28 July and was unable to work from 8 August for the foreseeable future. Workpac accepted the Commission was not limited in its discretion to that, however it would be sensible if the Commission was against WorkPac on all issues to limit compensation to that window of time. WorkPac said the evidence is Mr Guinea has not applied for any other roles in the Mining Industry in Queensland since termination.

[263] Workpac confirmed that the four weeks’ notice paid to Mr Guinea was calculated from 30 June and notice was given on 30 June however was not given in writing. Workpac accepted there would be a basis for a finding the notice started from 7 July and not 30 June. The CFMMEU submitted JK2 needed to be read by reference to para 21(c), (d) and e Mr G was given notice and if an alternative position could not be found he would be terminated.

[264] Workpac submitted it was clear having reached the age of 64 Mr Guinea was prepared to be selective about what roles he would accept. WorkPac submits that it did diligently work to identify roles for Mr Guinea and given the COVID-19 epidemic and Mr Guinea’s limitations in what he was prepared to accept Workpac should not be criticised for that. Workpac said there were no hard feelings between it and Mr Guinea.

[265] Adopting the formula in Sprigg v Licensed Festival Supermarket²⁴ it is necessary to form a view about the remuneration Mr Guinea would have received or would have been likely to receive if he had not been dismissed. I requested that the parties confer and provide me additional information about Mr Guinea’s average weekly earnings. The parties agreed his ‘actual’ average weekly earnings given his job share arrangement was $964.03 per week. Given it is uncontested he could only have worked between 10 July and 7 August and given this roster pattern I estimate the maximum he could have earned between those dates was another two weeks’ pay which equates to $1,928.06. The evidence is that given the Tweed was a COVID-19 hotspot he would not have been able to work from 8 August to at least 3 November.

[266] It was Mr Guinea’s evidence that at the meeting on 17 June Mr Flower referred to pending redundancies for labour hire employees within 3 months. I note more 3-month casual labour hire positions were created and filled by Workpac employees in August however there was no further evidence as to whether these roles continue. Given all of the circumstances including some evidence of potential pending redundancy of labour hire employees in the months ahead and the border closures I am not confident Mr Guinea was likely to have returned to employment at the Daunia Mine after 7 August had he not been dismissed. On that basis I estimate the remuneration Mr Guinea would have earned had he not been dismissed as $1,928.06.

[267] There is no evidence of any other remuneration being earned since termination in the relevant period and no further deduction for that reason. I have taken into account Mr Guinea’s length service. There is no need to make any deduction for contingencies given the period of time for which compensation is ordered has passed. There is no suggestion an order for the payment of compensation would affect the viability of Workpac. There was some evidence Mr Guinea has made efforts to mitigate his loss and I make no deduction on account of failure to mitigate.

[268] There is no suggestion of misconduct contributing to the employer’s decision to dismiss Mr Guinea. The amount of $1,928.06 does not exceed the compensation cap. I have considered the impact of taxation but have elected to settle a gross amount and leave taxation for determination.

[269] I am satisfied that the amount of $1,928.06 compensation into account all the circumstances of the case as required by s.392(2) of the FW Act. I intend to issue an order separately and concurrently with this decision that WorkPac pay Mr Guinea the sum of $1,928.06 plus 9.5% superannuation within 14 days of this decision being issued.

COMMISSIONER

Appearances:

Mr A.Walkaden of the CFMMEU appearing on behalf of the Applicant.
Mr D. Williams of MinterEllison appearing on behalf of the Respondent.

Hearing details:

2021,
Brisbane by Microsoft Teams Video:
January 28

Printed by authority of the Commonwealth Government Printer

1 Statement of Jessica Kemp dated 25 November 2020, annexure “JK-1”.

2 Statement of Jessica Kemp dated 25 November 2020 at paragraph 21.

3 First Statement of Peter Guinea, annexure “PG-2”.

4 First Statement of Peter Guinea, annexure “PG-3”.

5 Statement of Jessica Kemp dated 25 November 2020, annexure “JK-3”.

6 Statement of Jessica Kemp dated 25 November 2020, annexure “JK-4”.

7 Statement of Jessica Kemp dated 25 November 2020, annexure “JK-3”.

8 Statement of Jessica Kemp dated 25 November 2020, annexure “JK-4”.

9 [2013] FWCFB 8936.

10 Ibid at [26].

11 [2018] FWC 5745.

12 [2016] FCAFC 99.

13 [2016] FWC 6494.

14 [2010] FCA 591 at [53] - [54].

15 [2001] AIRC 1189 at [25].

16 [2014] FWC 1578.

17 [2014] FWCFB 4125.

18 [2014] FWCFB 714.

19 [2010] FWAFB 7578.

20 At [34] – [35].

21 At paragraph 35.

22 [2021] FWC 508.

23 [2016] FWCFB 5243.

24 (1998) 88 IR 21.

Peter Guinea v Workpac Pty Ltd