Scott Menzel v Madill No. 1 Pty Ltd
[2025] FWC 1305
•11 JUNE 2025
| [2025] FWC 1305 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Michael John Carroll; Benjamin Lettres; David William Jones; Johnnie Wayne Collis; Michael William Davidson; Scott Menzel
v
Madill No. 1 Pty Ltd
(C2024/8577; C2024/8634; C2024/8636; C2024/8650; C2024/8660; C2024/8828)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 JUNE 2025 |
Alleged dispute about any matters arising under the modern award and the NES – Vehicle Repair, Services and Retail Award 2020 – whether termination or resignation – whether consultation procedure for redundancies followed – consent arbitration – determined on the papers – termination – dispute determined
In early December 2024, Mr Michael John Carroll, Mr Benjamin Lettres, Mr David William Jones, Mr Johnnie Wayne Collis and Mr Michael William Davidson and Mr Scott Menzel (together, the Applicants) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with Madill No. 1 Pty Ltd[1] (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).
The Applicants had been notified that their positions had been made redundant and they requested an urgent conference in the Commission.
The Applicants did not request interim orders. Each of the applications are similar. They allege that on 28 October 2024, the Applicants received a phone call from the Respondent advising them that the role of Roadside Technician had been made redundant.
The background is that the Respondent had previously been contracted to provide Roadside Technician services for RACQ. However, on 28 October 2024, the Respondent was advised that that contract would not be renewed. The end date for the contract was 9 December 2024, after which time RACQ would operate its Roadside Technician service through Club Assist.
The Applicants were offered various alternative positions, which they say, for different reasons, were unsuitable. This will be considered in more detail below. It appears that most of the affected employees obtained new employment with Club Assist, essentially performing the same Roadside Technician role as they did prior to the redundancy, with a new employer.
The Respondent requested that the Applicants advise whether they would be continuing their employment with the Respondent or otherwise “do them the courtesy” of informing them that they had taken a new position with Club Assist and provide a written resignation.[2]
The Applicants state variously that there was insufficient consultation, and insufficient detail about the alternative roles. The Applicants allege that the consultation requirements of the Vehicle Repair, Services and Retail Award 2020 (the Award) were not complied with.
The Applicants all state that they were not paid their statutory redundancy entitlements nor notice of termination. The Applicants lodged the dispute on the basis that the Respondent advised them that they would not receive their redundancy pay and they requested that the Commission ensure that this is paid. I have considered both the issue of whether the Applicants are entitled to redundancy pay and whether the consultation procedures were followed in this decision.
A conference was held on 6 December 2024. No resolution was reached during the conference.
The parties were advised by my Chambers that if the Respondent wished to apply to vary the redundancy payment, the appropriate application is a s.120 application. In that application, the Commission can consider whether it is appropriate to vary the redundancy payment, including because the employer has obtained suitable alternative employment for the employee. To date, no s.120 application has been received.
Background
On 28 October 2024, Mr Simon Guthrie, Dealer Principal for the Respondent, called the affected employees to inform them that RACQ contract would not be renewed and that the end date for the contract would be 9 December 2024 (the phone call). Mr Guthrie used a script for the phone call so that each employee would receive the same information. Some of the Applicants requested that a copy of the script be provided to them in writing and this was not provided.[3]
On 30 October 2024 and 31 October 2024, the Club Assist held a session and met with the Respondent’s employees at the Respondent’s sites in Noosa and Maroochydore.[4] The Respondent arranged this site visit.
On 8 November 2024, Ms Hayley Brown, Executive Assistant to Mr Guthrie and HR Manager, sent emails to the Applicants asking them to attend a meeting in person to discuss the redundancy (the 8 November 2024 email). Those emails note the major change in the business may cause uncertainty and invite employees to attend a meeting in person between 20 to 22 November 2024 to discuss the positions available if the employee choses to stay with the Respondent. The emails state:
In fact, the modern award which covers your terms and conditions of employment being the Vehicle Repair Services and Retail Award 2020 requires us to meet with you about the possible impact of this major change, and not just correspond in writing
The email notes that the current position of Roadside Technician will be made redundant but that the technician’s employment will not end because of redundancy.
Between 8 November 2024 and 20 November 2024, key members of the Respondent’s staff were on leave.
Between 20 November and 22 November 2024, discussions were held with the Applicants. The Applicants who attended in person meetings were provided with a printed copy of a job description for the redeployment role. The roles offered to each Applicant will be considered in greater detail below.
Some, or all, of the Applicants received legal advice in November 2024. On 24 November 2024, the Applicants sent a letter to the Respondent declining the redeployment offer. The wording of the correspondence appears to have been the same. By way of example, the wording of Mr Carroll and Mr Lettres’ letters is as follows:
To Hayley Brown.
I am writing in regard to the genuine redundancy of my role as an RACQ roadside technician within Madill Motor Group.
To date, I have not received any official notification in writing advising me of the cessation of RACQ roadside assistance activities with Madill Motor Group. A phone call does not meet your requirements as an employer to advise staff of changes to their contracted employment, proposed date of final operations, or options regarding termination, redeployment offers and redundancy.
Furthermore, requests to supply this information have not been forthcoming. Emails from Madill Motor Group asking for my resignation after an admission via email that my job role as RACQ Roadside Technician has been made redundant and stating that any further correspondence will not be engaged in is unacceptable. I also believe the repeated requests for my resignation borders on coercion, if not possible harassment.
I have accommodated Madill Motor Group in their request for a meeting to discuss the situation, at which, no written confirmation of any changes to contract or employment conditions/locations was supplied. The only written information I have received is a job description of a proposed role within the organisation, with no commencement date, no written notice of payrate, and no notice of when RACQ duties will cease. Again, verbal information is not sufficient in this situation.
After much consideration, I must advise that I will be declining the verbal offer of redeployment with Madill Motor Group. My reasons for this are valid, and in line with the appropriate clauses within the Act regarding this decision.
As such, I ask that my rights and entitlements be adhered to as per the award and employment act. This requires Madill Motor Group to terminate my employment, and not for me to resign. These entitlements would include payment of any and all accrued leave, payment in lieu of notice, battery bonus as applicable and redundancy payments as per my term of employment, again, all as per the award and Act.’
It is my opinion that all payments should be made at my full hourly rate. The reason for this is that there is no mention in my contract of a base award rate, just an hourly rate. Also, at no stage during my employment has my payroll information supplied to me ever separated allowances, penalties, etc., from any "base rate".
I request that this matter be handled expeditiously, to allow myself and Madill Motor Group to finalise this matter and concentrate on future endeavours.
I look forward to your prompt reply.
On 26 November 2024, each of the Applicants received a letter from Ms Brown setting out the Respondent’s position (the 26 November 2024 letter):
Dear [affected employee]
We disagree with some aspects of your letter we received on 24 November 2024. We are concerned that some factors may have become confused.
As we have said before, it is unfortunate that we did not get our contract to provide RACQ services renewed. As we advised on 28 October, 2024, the contract will end with Madill No. 1 Pty Limited on 9 December 2024, and will revert back to RACQ who will operate that service as Club Assist.
We are aware most employees have accepted new employment contracts with RACQ to start with Club Assist. We had expected those employees who accepted those roles to do us the courtesy of informing us directly so that we can plan our staffing resources by writing a resignation to confirm the ending of their employment with us.
In these circumstances:
- Your role as a Roadside Technician being redundant as of 9 December 2024, means it will not be filled by anyone in Madill Motor Group.
- That is not the same as ending of employment by termination.
- In these circumstances there will be no termination of employment of your employment at the initiative of the employer. To be clear, we are not terminating your employment as we are not causing it to end.
- The term “redeployment” may be used in these circumstances, although we prefer to say you are being offered a commensurate role so that you transfer with us.
- This role with us as a Roadside Technician is in a role based on us having an ongoing contract with RACQ.
- Now that RACQ have decided to take back their contract to deliver roadside services as of 9 December 2024, Madill Motor Group have offered you a commensurate role.
- We believe sufficient and reasonable notice has been provided to you of this significant change.
As we explained in our earlier email that spelt out the significant change that is coming with the ending of our contract with RACQ, and in discussions with a few of you who met with us recently, there are roles available for those who wish to stay which would give continuity. These roles are comparable, although there are some differences in some aspects of the work. We believe the differences are only about characteristics of the role and not about the substantive pay, and not about changes in seniority. The terms and conditions of your employment will continue if you stay without the need for a new employment contract. Once the contract with RACQ ends, then you would start in the role as offered to you at the relevant site.
In our opinion, there is no automatic entitlement to redundancy pay just because your position has been made redundant because we have offered you a commensurate role.
We are satisfied that should you decide not to continue with Madill Motor Group all our lawful obligations in relation to wages and final payments will be made to you according to the relevant modern award and legislation which is at your ordinary rate of pay as well as battery bonus if applicable.
We accept that you have declined the offer to stay employed with Madill Motor Group. We thank you for your service and wish you all the best for the future.
Following this letter, all of the Applicants except Mr Menzel lodged their Form F10 dispute applications in the Commission. A conciliation conference was held on 6 December 2024. Mr Menzel lodged his application on 8 December 2024.
During the conference, I advised the Respondent to provide written details of the redeployment to the Applicants and noted the Respondent has the ability to apply to vary the redundancy payment under s.120 of the Act, which requires consideration of whether suitable alternative employment was obtained by the employer.
On 6 December 2024, the Respondent sent letters to the Applicants. The letters notes that the Applicant would be “transferred” into new roles. The letters note that the Applicants are to report onsite on Tuesday 10 December 2024 and it notes who they will report to. A further letter dated 7 December 2024 notes the hourly rate of pay of the new position, the location, the hours and the weekly tool allowance.
The letters on 6 December 2024 states:
We appreciate that this past month has been at times stressful and uncertain for you with the change to the RACQ contract which will happen on and from 10 December 2024. Your last day as a Madill Motor Group Roadside Technician will be 9 December, 2024.
As we have said a number of times and reiterate now, you still have a job with Madill No 1 Pty Ltd.
Please find attached a job description which we may have sent you before, and formal statement of the rate of pay and location of the transferred role. We have endeavoured to find roles which are close to where you live.
It would be appreciated if you could please inform us in writing whether you are declining to stay with us and so are declining this offer. If you do not to stay with us then any entitlements will be paid as required by law shortly after we receive your formal notice that you have declined our offer of transfer.
If you are staying, we look forward to hearing from you and hopefully seeing you at 8:00am on Tuesday 10 December, 2024 at John Madill Toyota, 2 Lionel Donovan Drive, Noosaville, QLD 4566. You should report to Mr Matthew Higgins, Service Manager.
We may regard your employment as resigned if you do not arrive at work on Tuesday 10 December, 2024 AND have not formally notified us of your decision about whether to stay.
Nevertheless, it is important to inform you that if you do not accept this transfer of role we do not believe there is any lawful requirement for us to pay redundancy pay. In any case we may make an application to the Fair Work Commission to reduce the redundancy pay to zero. This can happen even though you believe and have claimed you may be entitled to the redundancy pay. It is anticipated such application will be justified because as previously explained:-
- there has been no termination of your employment at the initiative of the employer,
- the transferred role being offered meets the criteria of a comparable or equivalent role,
- in a reasonable location having endeavoured to get it close to your home, and
- with a comparable rate of pay, status, matching your skills and experience.
The RACQ contract ended on 9 December 2024. The Respondent received correspondence from employees declining the transfer in the period between 7 and 9 December 2024. None of the Applicants arrived for work with the Respondent on 10 December 2024.
The Respondent did not send a copy of the letter on 6 December 2024 to Chambers after the conciliation. I also note that the Respondent’s representative also gave assurances to the Commission that the s.120 applications would be made in January 2025. It is now June 2025, and those applications were never lodged. It was perfectly open to the Respondent to tell the Commission that they had no intention of lodging the applications, but they in fact told the Commission the opposite.
Jurisdiction and questions for arbitration
Following the conference, various assurances were received from the Respondent that the s.120 applications would be made shortly. However, it subsequently emerged through further correspondence provided by the Respondent that instead of the Respondent contesting the quantum of redundancy pay owed, the Respondent contests that there is any entitlement to redundancy pay at all.
In December 2024, three affected employees made an unfair dismissal application, which is the subject of a separate decision.[5]
As there was no progress of the dispute, despite requests for updates from the Respondent, my Chambers emailed the parties on 3 February 2025.
I proposed a method to resolve the dispute through consent arbitration on the papers. I note under clause 37.5 of the Award allows the parties to the dispute to agree on the process to be followed in the Commission to deal with the dispute. Noting the Form F10 applications from the Applicants are all similar and focus on clause 35 and clause 39 of the Award, which deal with consultation about change and the entitlements of employees of employees who have been made redundant, respectively, I proposed the question for arbitration as follows:
On a proper construction of the consultation obligations imposed by clause 35 and clause 39 of the MA000089 Vehicle Repair, Services and Retail Award 2020, did the employer meet these obligations in relation to redundancies of the affected employees?
The parties were invited to propose an alternative question. No alternative questions were submitted. The Applicants in this decision and the Respondent consented to the dispute being dealt with as proposed in the email from Chambers. Directions were set on 12 February 2024 for each party to provide submissions. The Applicants were also requested to provide submissions demonstrating that the dispute resolution clause had been complied with. Noting the Applicant seeks orders requiring the Respondent to pay their redundancy entitlements, among other things, I requested submissions on whether the Commission has power to grant the relief sought.
Whether the dispute resolution clause has been complied with
Clause 37 of the Award provides:
37. Dispute resolution
37.1 Clause 37 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
37.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
37.3 If the dispute is not resolved through discussion as mentioned in clause 37.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
37.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 37.2 and 37.3, a party to the dispute may refer it to the Fair Work Commission.
37.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
37.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute
37.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 37.
37.8 While procedures are being followed under clause 37 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
37.9 Clause 37.8 is subject to any applicable work health and safety legislation.
…
The dispute resolution clause requires that parties to the dispute first engage in “discussion” between the employees concerned and the relevant supervisor. If that does not resolve the dispute, then the parties should engage in “discussion” between the employees concerned and more senior levels of management.
The Respondent’s enterprise is not large. The Applicants’ emails were between themselves, Mr Guthrie and Ms Brown, executive Assistant to Mr Guthrie. Mr Lucas Wheeler, who was the direct manager of the Applicants, was copied in on most emails. Ms Brown also acts as HR Manager.
It is unclear whether the Respondent contests whether the Applicants have complied with the dispute resolution clause. The Respondent primarily contests that the Applicants were terminated. The Respondent states in its written submissions:
There had been various correspondence between each of the applicants, some more
than others.
Each email that was received by the respondent was replied to in a timely manner.
The formal dispute lodged by these Applicants in the Fair Work Commission was unexpected as most Applicant’s did not directly notify their employer when they lodged their Form F10 as is required.
The Applicants lodged their Dispute just days prior to the ending of the Roadside Assist contract.
…
The term “discussions” is to be construed flexibly. I refer to the comments of Flick J in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2):
[65] Just as the term “dispute” is to be given a flexibility of meaning such that it can apply to a single or small group of employees or a larger number of employees and simply involving those employees putting forward their commonly held “opposing” view as to the position of an employer, the terms “meeting” and “discussion” should equally be construed with a degree of informality and flexibility. The requirement that there be a “meeting” or a “discussion” obviously does not necessarily involve the necessity for a formally convened meeting or a formal discussion. An issue giving rise to a grievance on the part of an employee or group of employees may best be sought to be resolved informally and during (for example) a lunch-break at which the employee(s) raise their concerns with a manager or supervisor.
(emphasis added)
The Award does not specify that the parties must engage in multiple discussions prior to referring the matter to the Commission. As to the requirement to escalate the matter from the supervisor to more senior levels of management as appropriate, that is not applicable here, in my view, given the size of the Respondent’s enterprise. The correspondence and meetings were with the Applicants, Mr Guthrie, the Dealer Principal, his assistant Ms Brown and, sometimes, Mr Lucas Wheeler, who was the direct Manager of the Applicants. I note Mr Wheeler was on leave during November 2024 but I make no adverse findings with respect to the dispute resolution requirements as a result of his absence from some of the meetings.
Consideration
The Respondent argued in its submissions that no redundancy pay is owing to the Applicants under s.119(1) of the Act because they resigned or abandoned their employment and therefore the Respondent did not terminate them. This is an ancillary question which is relevant to the dispute and which I can determine as it relates to the National Employment Standards (NES).
It is not in dispute that the relevant contract with RACQ was not renewed.
Clause 3 of the Award states:
3. The National Employment Standards and this award
3.1 The National Employment Standards (NES) and this award contain the minimum conditions of employment for employees covered by this award.
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
The Award does not modify the circumstances in which redundancy pay is owed under the NES. The note under clause 39 of the Award states that redundancy pay is provided for in the NES and refers to ss. 119 to 123 of the Act.
Therefore, the question of whether the Applicants are entitled to redundancy pay involves the application and interpretation of s.119 of the Act.
Legislative history of s.119 of the Act
Section 119(1) states:
Section 119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
…
The wording of s.119 of the Act comes from the Termination, Change and Redundancy (TCR) case.[6] In that case, the Full Bench of the Australian Conciliation and Arbitration Commission opined that the primary purpose of severance pay is to compensate employees for “non-transferable credits and the inconvenience and hardship” rather than to tide over employees until they find a new job.[7] In the Supplementary TCR decision,[8] the Full Bench further elaborated on when the redundancy provisions will be enlivened:
In the circumstances, we are prepared to provide that the redundancy provisions shall not apply where the termination of employment is "due to the ordinary and customary turnover of labour" but we will not include the other categories referred to by the employers. We are also of the opinion that the employer should provide all relevant information "in writing".[9]
…
Alternative employmentThe employers contended that where an employer has gone to the trouble and expense of finding acceptable alternative employment for his employee, that employer ought to be prima facie entitled to relief from the requirement to make severance payments. They claimed that there was not such a welter of non-transferable benefits as to provide what is an unduly onerous obligation on employers to seek an exemption.
…
We are not prepared to award the clause which the employers claim. However, it would be consistent with our decision for the award to provide as follows:"10. An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee.”[10]
There is a misconception that every time an employee’s job is made redundant, the employee is entitled to a redundancy payment. The legislation, and the TCR case, distinguish between a “redundancy” and an entitlement to redundancy pay, or severance pay. An entitlement to redundancy pay arises where the employment relationship is terminated, other than for reasons of ordinary or customary turnover of labour, because their job is no longer required to be performed by anyone. It is not the case that every time a job is made redundant, an employee is entitled to redundancy pay – their employment must be “terminated” first.
Further, it is clear in the wording of Part 2-2, Division 11, Subdivision B of the Act, and in the passage from the TCR case above, that a prima facie entitlement to redundancy pay arises when an employee is terminated for the reasons set out in s.119(1). To put it another way, a prima facie entitlement arises under the Act where the employee has been terminated by reason of redundancy regardless of whether the employer has subsequently obtained suitable alternative employment. An employer must apply to the Commission in order to seek to vary the redundancy entitlement.
Termination by reason of redundancy or resignation?
I note at the outset in considering this issue that the submissions received from the parties were scant and mostly reiterate what is said in the Award and the Act without providing explanation of what that means and how it relates to the parties’ arguments.
As to the individual employment contracts, I understand that the Roadside Technicians had signed a pro forma employment contract. I have not been provided by the Respondent with a copy of the employment contract for every Applicant, but the contracts which I have been provided with are the same, aside from the employee’s details and signing date.
There are two phases in this matter.
Firstly, the Respondent put forward alternative positions in the form of an offer for redeployment, which the Applicants could either accept or not. The Respondent submitted that no new contract was required if the Applicants accepted the redeployment offer. For reasons stated below, that proposition is incorrect as the Respondent did not have the power to require the Applicants to perform the duties requested without varying the contract. This phase occurred from the end of October 2024 to the end of November 2024. The Applicants did not accept the redeployment offers, and that was clearly communicated to the Respondent in correspondence on 24 November 2024. There was some flexibility from the employer with the location of the redeployment role, but otherwise the role itself did not change.
Secondly, the Respondent notified the Applicants that they would be formally transferred to the alternative position which had previously been offered to them. By letters on 6 and 7 December 2024, the Respondent notified the Applicants that if they did not arrive for work on 10 December 2024, they would be considered to have resigned. The resignation would presumably be through abandonment of employment. While the letter of 6 December 2024 is phrased as being an “offer”, it is in substance a directive that the Applicants either advise in writing whether they are staying or going, or arrive at work in the redeployment role. It must be considered whether this unilateral variation of duties, by purporting to redeploy or “transfer” the Applicants to new roles was within the Respondent’s power or whether it amounted to a termination of employment.
Mr Jones, Mr Davidson and Mr Menzel stated in their initial submissions:
I was advised that if accepted it would be a transition with no new contract drawn up. My contract at the time stated I was employed as an RACQ Roadside Technician but would no longer be doing that role, I believe a new contract was applicable
Mr Carroll argued:
As no concrete employment contract was given in writing to the employees, as would be expected by the reasonable person, we felt that we had no other alternative to seek employment elsewhere.
Madill Motor Group had been informed as some point that RACQ Club Assist would be offering employment to your roadside assistant employees to commence once the redundancy period expired.
All information about the new employment contract was given in writing prior to this date, 9 December 2024, so that the applicants could make a valid decision. RACQ Club Assist was the only company to do so at any time in this process. Again, numerous requests were made to Madill Motor Group to supply the same and was ignored.
Madill Motor Group has contended that “This was reasonably believed to have occurred early in the process” We were verbally informed that Madill Motor Group was liasoning (sic) with RACQ Club Assist so therefore it was not a belief but a fact they were counting on.
I attest this as I firmly believe that no long-term job security would be provided by Madill Motor Group as they continually refused information requested during this time frame that would have concluded in a firm and in writing employment offer.
…
I felt that I had no choice but to take the offer from RACQ Club Assist to maintain any
form of job security. I did not resign from Madill Motor Group, they terminated my employment.A reasonable person can not be reasonably expected to make a valid decision without all the relevant information given in a reasonable timeframe. Taking on a new position requires changes in legal employment contracts that need to be carefully considered when making this type of decision and thereby continuing my employment with Madill Motor Group.[11]
Mr Lettres, Mr Davidson and Mr Collis argued:
6 Dec and 7 Dec email received giving details of formal offer of transfer and providing position description. Also in this email the Respondent advises that 'your employment with us is deemed to have ended due to your resignation because you did not accept the transfer', no resignation was given, written or verbal. In the next paragraph the Respondent advises that 'This letter confirms the termination of your employment contract effective date on and from 9 December 2024'. This was given 2 and 3 days prior to the role becoming redundant and only after Fair Work Commission advised them to do so.
I formally notified Madill’s and replied to the letter I received. I would not be accepting their roll (sic) offered, at their request from the letter.
…
I agree that I was not forced to resign nor decline the offer of redeployment. I was however asked verbally and via emails on occasion to hand in my resignation should I gain other employment. If I had resigned this would have voided the Respondent's obligation to pay redundancy and I believe that is why it was requested numerous times.
…
As all information in relation to a redeployment offer was not advised by the Respondent until 6 and 7 December after repeated requests, I accepted an offer of employment elsewhere when it was presented to me, This was to secure my future. Based on the limited information provided by the Respondent in relation to the redeployment offer, I declined such offer via email on 24 November 2024 as disclosed in my original submission.[12]
Mr Menzel argued:
I was informed by a reliable source within the RACQ Brisbane, that it was Madill's decision to surrender the contract early in December 2024.I was not employed by RACO but by Madills, therefore making them my employer and being made redundant by Madills.
1was not forced to resign but encouraged too (sic) if I gained other employment. If I resigned this would give the respondent the right to not pay redundancy. I feel this is why I was requested numerous, times to resign.[13]
The tenor of the Applicants’ arguments is that as the Respondent did not provide the details of the transfer of employment in writing until approximately 3 days before the change was to come into effect, then the Applicants had no choice but to accept alternative employment with RACQ. The Applicants contest that the Respondent had the ability to transfer them into new roles without providing a new employment contract. The Applicants also faintly argue that the failure of the Respondent to provide information in writing was calculated, as they were counting on the employees to accept roles with RACQ instead so that they could avoid their obligations to pay redundancy entitlements. I note for clarity that there was no formal transfer of employment within the meaning of s.122 of the Act. Further, the Applicants provided in evidence an email from the Club Assist Roadside Operations manager, their new manager, which states:
Yes you are correct. Employment with Club assist is not a continuation of your employment from Madills.
We are a new employer for you.
As such, non (sic) of your accrued entitlements e.g. personal leave, annual leave or long service leave etc will be carried over.
From my perspective the only role facilitated by Madills with you gaining employment with us was the co-ordination/assistance in having existing Madills roadside employees attend the information session that we provided.
Frome (sic) there expression of interest from roadside employees and our offer of employment and any subsequent on-boarding was outside of any Madills involvement or influence.
The Respondent’s view is that as the Applicants refused to accept the “transfer” of role and did not arrive at work on 10 December 2024 then they resigned or abandoned their employment and were not “terminated” at the Respondent’s initiative within the meaning of s.119 of the Fair Work Act. The Respondent held the view that the Applicants could be transferred to perform new duties without the need for a new employment contract. This is what they stated in their letters to the Applicants. The Respondent also stated in its letter to the Applicants of 26 November 2024:
This role with us as a Roadside Technician is in a role based on us having an ongoing contract with RACQ.
I note there is no express term in any employment contract I have been provided with which states that the Roadside Technician role is contingent on the Respondent retaining its contract with RACQ. If the Respondent contends that this term is implied, it would have to satisfy the test in BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266. I note the employment contracts I have been provided with make no express reference to the RACQ contract at all and I question whether the term could be implied. However, it is not necessary to decide on that point.
In Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867 (“Broadlex”), Katzmann J considered the meaning of the term “employment is terminated” in s.119(1) of the Act and noted that a change in work from full-time to part-time duties was a repudiation which gave rise to an entitlement to redundancy pay under s.119(1) of the Act.
Her Honour reasons in regard to the repudiation as follows:
[70] Here, in contrast to Visscher, there was, in effect, a wrongful dismissal constituted by Broadlex's repudiation of the employment contract, which brought the employment relationship to an end. The relationship in which Ms Vrtkovski entered after she accepted the repudiation was a fundamentally different relationship from the relationship the parties previously enjoyed. She was no longer a full-time employee but a part-time employee, performing a fraction of the work she formerly undertook for a fraction of the remuneration she formerly received.
(emphasis added)
Broadlex is not directly on point in this case. The Respondent states: “The respondent offered each affected employee an alternative role at the same hourly rate although there was some change to their duties and the nature of the work… There was no forced transfer to lower paid duties.”
While this matter does not involve the same circumstances as Broadlex – a transition from full time to part time – it is clear from Broadlex that the phrase “the employee’s employment is terminated” in s.119(1) is not confined to cases where the employer provides an express notice of termination to the employee and includes instances of contractual repudiation.
In Whittaker v Unisys Australia Pty Ltd [2010] VSC 9, Ross J considered, at common law, the issue of whether removing an employee from their former position was a repudiation and therefore a termination of employment triggering the redundancy clause of the plaintiff’s contract. The plaintiff in that case was a high-level executive on a common law contract. Ross J summarised the considerations:
[41] In the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. The degree of change necessary to constitute a repudiation has been variously described in the decided cases. In Quinn v Jack Chia (Australia) Limited Ashley J looked to whether a change in duties and responsibilities was ‘profound’. In Brackenridge v Toyota Motor Corporation Australia Ltd the Full Court of the Federal Court was persuaded that the change of duties and classification of the employee was ‘of such a degree’ that it should be held that Toyota had terminated the old contract and replaced it with a new contract.
[42] While each case necessarily depends on its own facts, the judgment of Madgwick J in Westen v Union des Assurances de Paris is instructive given that there are some parallels between the facts of that case and those in the present proceedings. In Westen, the applicant had been the manager of all claims for the NSW Branch and of a small staff which comprised that Branch’s ‘Claims Department’. He reported directly to the NSW Branch Manager and had his own personal secretary. He had important powers of final decision over the settlement of claims and had the final advisory role as a claims specialist in relation to significant claims in any Branch. The respondent merged with another insurance company and a reorganisation followed. The applicant was to be, in substance, the senior claims employee within a team led by a Mr Cummins, which would deal with business sourced from larger customers. There was no proposal to reduce the applicant’s salary, or to move him from his office, and he would still be called, a ‘Claims Manager’. However, in the result, the applicant:
•would not be the manager of all claims in NSW, nor in any real sense, of his own discrete staff;
•he would not report directly to the State Manager, because his Team Leader, Mr Cummins, would be interposed between them;
•he would not have his own personal secretary;
•he would not have power of final decisions over claims except by way of delegation in routine matters from his Team Leader; and
•he would not have the final advisory role to national top level management in relation to national claims.
[43] In these circumstances, Madgwick J concluded that the applicant was entitled to treat the contract of employment as breached in a fundamental way by the respondent:
The applicant perceived, and in my view correctly perceived, that there was a considerable change in the nature of the new position he was being offered. He was, in effect, to become a senior, specialist claims clerk, whose considerable experience and expertise might be available to other people outside his team, dealing with claims, but it would be at the option of those other people, to consult him or not. Continuing to call him a Claims Manager did not make him one.
[44] His Honour also referred with approval (subject to a gloss) to the following observation by the learned authors of the Law of Employment (3rd Edition, Law Book Company 1990), Macken, McCarry and Sappideen (at p 188):
In the absence of a contract allowing it, the employer cannot force changes [of jobs or regrading] on an employee. An attempt to do so will involve the employer in breach of contract if the [employee] presses her or his requirements….
[45] The gloss which his Honour put on the above statement is that:
….. this must not be taken to propound undesirable inflexibility: there must be some reasonable give and take. In a rapidly changing world, it would be uncommon for the parties to a contract of employment to envisage no change in aspects of the job. But employers’ perceptions as to what are the important aspects of jobs they have promised employees and later wish to change may not coincide with the perceptions of the employees, nor of independent observers, such as courts to which the employees might, in due course repair. Serious, non-consensual intrusions upon the status or responsibilities, as well as upon the remuneration, attaching to a job may well be held to amount to a repudiation of the contract of employment, and their actuality will not be denied merely by the retention of the job’s title. That is the drift and the tenor of cases such as Beck v Darling Downs Institute of Advanced Education (unreported, Supreme Court of Queensland, No 3865 of 1988, Dowsett J, 20 April 1990) and Quinn v Jack Chia (Australia ) Ltd (1991) 43 IR 91.
[46] I respectfully adopt his Honour’s approval of the passage from Macken, McCarry and Sappideen and the gloss which his Honour put on it.
…
[85] I am satisfied that the mega deal position constituted a substantial diminution in status and responsibility when compared to the plaintiff’s former VP and GM role. In his former role Mr Whittaker had been responsible for a profit and loss account and running one of the three business units within Unysis’ Asia Pacific operation. He managed a budget and had eight direct reports. The plaintiff was then unilaterally removed from that position and offered a senior specialist role in which he would be responsible for negotiating and closing ‘mega deals’. No specific budget or resources had been allocated to the proposed role. He would have only one direct report and no responsibility for the management of a business unit or a profit and loss account.
[86] I am satisfied that the removal of the plaintiff from the VP and GM position and the offer of the mega deal position constituted a repudiation of his contract of employment. By its actions, Unysis evinced a plain intention not to be bound by the existing contract.
(citations omitted)
The Broadlex and Whittaker decisions should be understood in light of the meaning of dismissal in s.386 of the Act, a consideration which Katzmann J broadly alludes to. That section defines a dismissal as either termination at the initiative of the employer or a forced resignation. In NSW Trains v Todd [2022] FWCFB 55, the majority of the Full Bench made the following comments:
[32] Contrary to Deputy President Saunders’ construction, we consider that s.386(1) exclusively defines the circumstances which give rise to a person being ‘dismissed’ by an employer for the purposes of Part 3-2 the FW Act. It follows that a person who has been demoted in employment, but who remains in the employ of the employer, has only been ‘dismissed’ if the person’s employment has been terminated on the employer’s initiative within the meaning of s.386(1)(a) of the FW Act
…
[45] We agree with the proposition that the expression ‘employment ... has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment. Contrary to the Deputy President’s view at first instance, on this construction, unless the circumstances in s.386(2)(c) apply, an employee may be dismissed within the terms of s.386(1)(a) if the employer has repudiated the employee’s contract of employment by demoting the employee and the employee has accepted that repudiation but has continued to be employed by the employer under a new employment contract.
In Ucinek v Medi-Map Group Pty Ltd[2024] FWC 981, Deputy President Hampton considered, in the context of a general protections application, whether an Applicant’s contract was repudiated or whether she was demoted after she was informed that the Respondent no longer needed her of General Manager and instead moved her into the role of Head of Sales and Marketing. The Deputy President considered that unilateral changes to an employee’s role could objectively constitute a repudiation,[14] but found in that case that that had not occurred. The Deputy President distinguished between actual changes and proposed changes in the future which may lead to the Applicant’s duties no longer being required and noted, on balance, that a reasonable apprehension of changes in the future did not substantiate a finding of repudiation at that point in time.[15]
I considering whether the redeployment upon the loss of the RACQ contract resulted in a termination of employment at the employer’s initiative either by way or repudiation and/or demotion through significant reduction in duties or remuneration, I will consider the following factors:
The job which the Applicants were performing prior to the redundancy;
The differences in duties and remuneration in the new role which the Respondent directed the employees to undertake; and
The ability of the Respondent to direct the Applicants to undertake new duties.
Roles which the Applicants were employed in prior to the redundancy
The Applicants were employed in the role of “Roadside Technician” under their employment contracts. It is noted in the employment contract that the employee is required to perform the position of roadside technician, as well as other tasks from time to time. There is no list of duties incorporated into the contract.
The contract notes that the employee has duties to comply with reasonable directions of the employer.
It is very common for an employment contract to give the employer a broad power to direct the employee to perform other duties, to give flexibility. However, this power is not unlimited.
The roadside technicians reported to Mr Lucas Wheeler.
Mr Lettres described the role of Roadside Technician as follows:
I was at the time working 11 hour shifts, attending to vehicles broken down and in need of assistance, if I was unable to assist in getting the vehicle back on the road, a tow truck would be called and the vehicle would be taken to a workshop to be repaired. No workshop duties would be performed by me. My role included weekend work, night shifts and public holidays.
It is tolerably clear that the role of Roadside Technician, based on the submissions of the parties, requires the person to be on the road, performing mechanical assistance for RACQ customers. The Applicants say that that work was “very basic” and not the same as what a mechanic would be expected to do. The Respondent has not provided further evidence of what the role required. I note that the Roadside Technicians were contracted to perform work for RACQ. It seems that the Roadside Technicians were afforded a degree of autonomy when on the road, given they were driving service vehicles and attending breakdowns, rather than working in a workshop under directly under supervision.
As roadside technicians, the Applicants received a base hourly rate of $35 per hour as well as a “battery bonus” which was a sales commission for batteries sold to customers.
Differences in duties and remuneration in new role
It is clear that the new roles were not the same role as before. The Respondent states in its letter of 26 November 2024:
- Your role as a Roadside Technician being redundant as of 9 December 2024, means it will it be filled by anyone in Madill Motor Group.
Further, it is submitted in the written submissions:
[9] The respondent offered each affected employee an alternative role at the same hourly rate although there was some change to their duties and the nature of the work.
[10]There was no forced transfer to lower paid duties.
It is necessary to examine in detail what was offered to the Applicants.
Mr Carroll
On 20 November 2024, Mr Carroll met with the Respondent and states that he was given “a printed copy of a job description, with no start date, pay rate, or other information was given to the applicant”. The position was stated to be as a Service Technician and was verbally stated to be in Gympie. Mr Carroll states that the role is substantially different from his role of Roadside Technician in that it requires far greater knowledge and skills, and he may not be in the physical condition to undertake that kind of work due to his age. He suggested that he would require retraining to perform the new role. Mr Carroll also notes that the job is in Gympie and would require more travel.
With the Roadside Technician role, the Applicants were provided with a service vehicle. Mr Carroll noted that in the Service Technician role he would have to drive to Gympie in his own car.
Mr Carroll also noted that the role required him to have more tools than he currently owns. Each of the Applicants estimated that the tools would cost $3,000 to $5,000. It is not clear where they got this figure from. Mr Carroll did not provide a copy of the letter he received on 7 December 2024. However, I note based on the letters provided by other Applicants, the tool allowance is $13.86 per week. I note a tool allowance of $13.86 per week equates to approximately $720.00 per year.
Mr Lettres
Mr Lettres was offered a role as Trade Assistant and was provided with a job description:
NAME:
TITLE: TRADE ASSISTANT
REPORTS TO: SERVICE MANAGER
DEPARTMENT: Service Department
1. SKILLS & EXPERIENCE
· EXCEPTIONAL COMMUNICATION SKILLS
· EXCEPTIONAL CUSTOMER SERVICE SKILLS / PHONE MANNER
· BASIC MECHANICAL KNOWLEDGE
· MUST BE SELF MOTIVATED, INNOVATIVE AND POSITIVE.
· CURRENT DRIVERS LICENCE
2. BASIC FUNCTIONS
· PROVIDE THE BEST POSSIBLE SERVICE TO OUR CUSTOMERS WHILE ASSISTING TO MAINTAIN AN EFFICIENT AND PROFITABLE OPERATION
· CARRY OUT JOBS AS DETAILED ON JOB CARDS (RO'S)
· ALWAYS AIM FOR FIXED RIGHT THE FIRST TIME
· DO JOB AS QUICKLY AS POSSIBLE WHILST ALWAYS MAINTAINING A VERY HIGH STANDARD OF WORK
3. RESPONSIBILITIES
CUSTOMER SATISFACTION:
· MAKE SURE EVERY VEHICLE IS WASHED AND TYRES BLACKED
· MAKE SURE SERVICE ADVISOR IS ADVISED IF VEHICLE IS NOT GOING TO BE READY ON TIME
· TELL SERVICE ADVISOR IF ANY FURTHER REPAIRS ARE NEEDED FOR VEHICLE.
· KEEP SERVICE MANAGER INFORMED OF ALL PROBLEMS AND POTENTIAL
· PROBLEMS INVOLVING REPAIRS, CUSTOMERS, PARTS AND EQUIPMENT.
GENERAL:
· MAKE SURE THAT YOU CLOCK ON AND OFF EVERY SERVICE JOB
· ALWAYS REFER ANY QUESTIONS THAT YOU MAY HAVE TO THE FOREMAN OR THE SERVICE ADVISOR. ALL JOBS COMPLETED MUST BE INSPECTED BY A QUALIFIED TECHNICIAN.
· MAKE SURE EVERY VEHICLE IS TEST DRIVEN AND WASHED AND TYRE BLACKED
· MAKE SURE THAT EVERY JOB CARD HAS THE CORRECT STORY WRITTEN ON THE BACK
· GIVE JOB CARDS TO THE FOREMAN AS SOON AS THE WORK IS FINISHED
· KEEP SERVICE BOARD UPDATED CONSTANTLY
· LET THE FOREMAN KNOW AS SOON AS YOU KNOW IF THERE ARE ANY PROBLEMS WITH THE JOB I.E. NOT GOING TO BE READY ON TIME OR FURTHER REPAIRS WILL NEED TO BE CARRIED OUT
· ENSURE REPAIRS ARE DONE PROPERLY
· ENSURE EVERTHING THAT IS ON THE JOB CARD HAS BEEN DONE
· ENSURE THAT THE WORKSHOP IS ALWAYS IN A CLEAN AND SAFE STATE
· ENSURE SECURITY OF CUSTOMER VEHICLES
· EXPLAIN ALL ASPECTS OF THE JOB AND WORK CARRIED OUT TO THE FOREMAN AND ENSURE THE FOREMAN IS HAPPY WITH THE EXPLANATIONS AND THE WORK CARRIED OUT
· COORDINATE & COOPERATE WITH ALL DEPARTMENTS AT ALL TIMES
· CARRY OUT OTHER TASKS AS DIRECTED BY MANAGEMENT
EXPENSE CONTROL:
· MAKE SURE YOU WORK TO THE BEST OF YOUR CAPABILITY
· WHERE NECESSARY PREORDER ANY NON REGULAR PARTS FOR BOOKINGS
· IDENTIFY R/O’S THAT REQUIRE SPECIAL HANDLING, SUSH AS CUSTOMER WAITING, PRIORITY REPAIR OR COMEBACK, ETC.
· OBTAIN MANAGEMENT APPROVAL BEFORE CHARGING ANY AMOUNT AT ALL TO MADILL MOTOR GROUP
· MUST HAVE ORDER NUMBER TO OBTAIN ANYTHING OUTSIDE OF THE COMPANY
· MUST GIVE ANY INVOICES TO THE SERVICE ADVISOR AS SOON AS YOU GET THEM
FACTORY RELATIONS
· MAINTAIN THOROUGH KNOWLEDGE OF WARRANTIES, POLICIES AND PROCEDURES
· INTERPRET WARRANTY INFORMATION AND POLICIES TO CUSTOMERS WHERE NEEDED
HOUSE KEEPING / SAFETY
· MAINTAIN A HIGH DEGREE OF PRODUCT KNOWLEDGE ON ALL VEHILCES SOLD AND SERVICED BY OUR DEALERSHIP
· FOLLOW HOUSEKEEPING, SAFETY AND SECUIRITY PROCEDURES THAT RESULT IN A SAFE AND ATTRACTIVE WORKING ENVIRONMENT
· MAINTAIN WORKSHOP IN AN ATTRACTTVE STATE
· DISCOURAGE IN A FRIENDLY MANNE& ANY ENTRY TO WORK AREAS BY
· CUSTOMERS TO ENSURE THE SAFETY OF ALL CONCERNED
· FOLLOWAND COMPLY WITH ALL THE DEALERSHIPS WORKPLACE HEALTH AND SAFETY PROCEDURES.
· KEEP WORK AREA CLEAN AND UNCLUTTERED AT ALL TIMES
· BE WELL PRESENTED WITH A PROFESSIONAL PRESENTATION
QUALITY ASSURANCE
· MAINTAIN ADHERENCE TO QUALITY ASSURANCE SYSTEMS
· REPORT ALL CUSTOMER COMPLAINTS (INTERNAL AND EXTERNAL) AND CONDITIONS THAT ARE ADVERSE TO THE OPERATIONAL EFFICIENCY OF THE DEPARTMENT OR ACHIEVMENT OF QUALITY
· MAKE SUGGESTIONS FOR IMPROVEMENT AS APPROPRIATE
ACCOUNTABILITY
PERFORMANCE STANDARDS FOR THIS POSITION ARE MET WHEN:· MONTHLY CUSTOMER LABOUR SALES OBJECTIVES, ESTABLISHED WITH MANAGEMENT, ARE ACHIEVED
· TOTAL CUSTOMER SATISFACTION IS ACHIEVED AND TARGETS ARE MET
· NO CUSTOMER COMPLAINTS ARISE WHICH HAVE BEEN CAUSED OR COULD HAVE BEEN PREVENTED BY YOU
· ALL CUSTOMER COMPLAINTS ARE ATTENDED TO IMMEDIATLEY
· YOU READ AND LINDERSTAND INFORMATION WHEN WRITTEN ON R/O,S
· ALL INTERNAL PROCEDURES AS DIRECTED BY MANAGEMENT ARE ADHERED TO.
I note the role is stated to require “basic mechanical knowledge”. It seems to me that this must be a similar degree of knowledge to that required for a Roadside Technician, based on the description given by the Applicants.
Mr Lettres does not state, as some of the other Applicants did, that he did not have the skills to perform the work. Instead, his primary concern was financial. He stated:
I was told verbally the location was in there [sic] Gympie Dealership (95.5km away), and the pay rate of $35.00 per hour, on a 38hr week in the warranty department of the workshop. I asked if there was a company car or Fuel card that comes with this roll [sic] and was advised I would have to use my own car, fuel and time to get to and from work. At the present time I do roughly 99km per fortnight traveling 33km to my current workplace to pick up the RACQ Patrol vehicle for my shifts (42hrs a week). I believe that this is not a reasonable offer of (redeployment) due to the Reduced hrs, cost of fuel, where [sic] and tare [sic] on my personal vehicle and time to get to and from work. I have also heard from co workers that we would be required to supply our own tools suitable for a modern workshop that could potentially cost $3000 - $5000.
…
On my calculations based on last financial years Gross pay, my salary will be $24442.12 less than last financial year, if you include the fuel I will use, I will be $36360.52 out of pocket compared to last financial year, this also doesn’t include Ware [sic] and tear of my personal vehicle and servicing costs. [16]
If I accepted the roll [sic] offered, I would have been driving my personal Vehicle to gympie (99km from home) or Noosa (70km from Home) and back every day at my cost. In my final face to face meeting, I was advised I would be based in gympie. This would be approximately 10 hrs of driving per week, 990km per week, 150ltr fuel costing me around $300 per week, less hours per week and no bonus scheme or overtime. Overall worse off financially and not comparable, Also start a job in an environment I have not been in for 25years.[17]
Mr Jones
Mr Jones provided in evidence a Job Description for a Service Technician role and given to him during an in-person meeting in November 2024. That role appears to require more mechanical knowledge and skills than the Trade Assistant role:
NAME:
TITLE: SERVICE TECHNICIAN
REPORTS TO: FOREMAN
DEPARTMENT: SERVICE DEPARTMENT1. SKILLS & EXPERIENCE
•CURRENT DRIVERS LICIENCE
•SOUND COMMUNICATION SKILLS
•SOUND KNOWLEDGE OF WORKSHOP PROCEDURES
2. BASIC FUNCTIONS
•PERFORM MECHANICAL SERVICE AND REPAIR WORK AS ASSIGNED
•SATISFY CUSTOMER EXPECTATIONS BY PERFORMING WORK TO A HIGH LEVEL OF QUALITY
•PERFORM WORK TN AN EFFICIENT/ PROFITABLE MANNER
3. RESPONSIBILITIES
SERVICE OPERATIONS·CARRY OUT VEHICLE REPAIRS AND/ OR SERVICE AS PER THE REPAIR ORDER TO DEALERSHIP AND FRANCHISE REQUIREMENTS AND REPORT DIRECTLY TO THE FOREMAN WHENEVER THIS CANNOT BE DONE.
·PLAN EACH JOB FOR MAXIMUM EFFICIENCY. ORDER PARTS (WHERE NECESSARY) FROM PARTS AS REQUIRED
•MAINTAIN A SOUND KNOWLEDGE OF DEALERSHIP PRODUCTS AND SERVICES
·REQUEST ASSISTANCE FROM FOREMAN WHEN PERFORMING DIAGNOSIS WHERE REQUIRED
·FOLLOW CORRECT PROCEDURE WHEN CARRING OUT WARRANTY WORK AND ENSURE ALL WARRANTY PARTS ARE TAGGED WITH THE CORRECT INFORMATION AND PLACED IN WARRANTY STORAGE
·BE RESPONSIBLE FOR THE CARE & USE OF ALL WORKSHOP TOOLING & EQUIPMENT AND RETURN TO CORRECT PLACE AFTER USE
•CORRECTLY COMPLETE ALL WORKS AS PER STANDARD REPAIR TIMES GUIDE
·CHECK FOR ANY ADDITIONAL WORK REQUIRED AND OBTAIN PRIOR AUTHORITY FROM CUSTOMER BEFORE ANY ADDITIONAL REPAIRS ARE CARRIED OUT
·DO NOT UNDER ANY CIRCUMSTANCES GIVE CUSTOMERS QUOTES, REFER THEM TO A SERVICE ADVISOR
·LEGIBLY COMPLETE ALL PAPERWORK CORRECTLY WITH ALL DETAILS REGARDING WORKS CARRIED OUT AND/ OR PARTS ORDERED
•RETURN VEHICLES IN A CLEAN CONDITION AFTER REPAIRS
•ALWAYS USE SEAT COVERS & FLOOR MATS
•DO NOT SMOKE IN WORKSHOP AND ONLY IN DESIGNATED AREAS
·OBEY ALL ROAD LAWS AND ONLY ROAD TEST WITHIN DESIGNATED TEST AREAS. REFER TO FOREMAN FOR THESE AREAS
·MAINTAIN FAMILIARITY WITH AND FOLLOW DEALERSHIP PROCEDURES WHEN OBTAINING OR ORDERING PARTS
•MAINTAIN FAMILIARITY WITH WORKSHOP TECHNICAL SERVICE BULLETIN
·SUGGEST TRAINING AND TOOLING NEEDS TO FOREMAN AS REQUIRED
•KEEP A COMPLETE UP-TO-DATE TOOL KIT
·MAINTAIN WORK BENCH AND BAY AREAS IN A CLEAN, ORDERLY AND ATTRACTIVE STATE
·MAINTAIN A SOUND KNOWLEDGE OF MADILLS POLICIES AND PROCEDURES (HANDBOOK SUPPLIED)
•CARRY OUT OTHER DUTIES AS DIRECTED BY MANAGEMENT
•MAINTAIN ALL WARRANTY PARTS IN AN ORDERLY FASHSION
•CLEANING, MAINTAINING AND SERVICING ALL WORKSHOP AREAS AS REQUIRED
PROFESSIONAL DEVELOPMENT
•PARTICIPATE IN IN-HOUSE TRAINING SESSIONS AS REQUIRED
·ATTEND TRAINING (CORPORATE OR TAFE) AS REQUIRED TO KEEP UP TO DATE WITH CURRENT PRODUCT TECHNICAL INFORMATION
QUALITY ASSURANCE
•MAINTAIN ADHERENCE TO THE QUALITY ASSURANCE PROGRAMME
·REPORT ALL CUSTOMER COMPLAINTS (INTERNAL OR EXTERNAL) TO THE SERVICE MANAGER
•MAKE SUGGESTIONS FOR IMPROVEMENTS AS REQUIRED
ACCOUNTABILITY
PERFORMANCE STANDARDS FOR THIS POSITION ARE MET WHEN:
·REPAIRS & MAINTENANCE ARE CARRIED OUT TO THE HIGHEST POSSIBLE LEVEL OF QUALITY IN THE MOST EFFICIENT MANNER
•A MINIMUM OF 95% PRODUCTIVITY IS ACHIEVED WITH AN EFFICIENCY OF 95%
•A LOW OR ZERO LEVEL OF REPEAT WORK IS MAINTAINED
•WORK BAYS AND WORKSHOP AREAS ARE CLEAN AND TIDY AT ALL TIMES
•WARRANTY PARTS CAN BE FOUND FOR YOUR REPAIRS IN THE CORRECT AREA
•THE CORRECT DIAGNOSIS IS CARRIED OUT AND THE CORRECT PARTS ARE REPLACED OR ORDERED
Mr Jones argued that the new role had “too much travel time” but it is not clear to me whether he was offered a role in Gympie or Noosa. Mr Jones also noted that the role would have reduced hours.
Mr Collis
Mr Collis was verbally offered a Trade Assistant position during his in-person meeting with the Respondent at the end of November 2024. The Job Description provided to him was the same as the one given to Mr Lettres.
Mr Collis states that while the Trade Assistant position had the same hourly rate, it would result in “substantially less remuneration” given there were less hours per week and because there was no battery bonus or overtime involved.[18]
Mr Davidson
Mr Davidson was verbally offered a role as a Service Technician during a meeting on 22 November 2024, with the same role description as outlined above. Mr Davidson rejected that offer for the following reasons, as outlined in his email of 7 December 2024 to Ms Brown:
1.The offer is not of a similar role or comparative employment.
2. The type of work you propose is vastly different and more complex.
3. The extra financial costs to me would be considerable. My work hours would be reduced and there is no battery sales bonus, along with the increased time and costs of travel to and from the location of employment and the wear and tear on my vehicle, make it not viable.
4. I would also be required to supply my own tools and keep them updated when needed.
5. As I have not worked in a workshop situation for over 30 years, it would be difficult to achieve the 'minimum of 95% productivity with an efficiency of 95%' level of competency as stated in your job description, therefore, I feel that job security would be at risk.
Mr Menzel
Mr Menzel was verbally offered a Service Technician role and provided a copy of the job description outlined above. Mr Menzel described his concerns with the role in an email to the Respondent dated 8 December 2024:
1/ Offer is not of comparable or similar employment to what I am currently doing for Madills now.
I have not been in a workshop environment for over 13 years employed as a Motor technician in any automotive repair industry.
For me to be employed in a workshop as a Motor Technician, I would not be able to meet your requirements listed on your proposed job description
issued to me by Madills. The levels of competency that would have to be met in a workshop will be potentially
difficult to achieve, due to the fact I have not been involved
in a workshop for over 13 years.
This type of work that you propose is very different and more complex than what roadside assistance duties involve.
Might I add that I have been working for the RACQ for 40 years or more involved in roadside assistance and
recovery work with towing.
2/ Financially your job offer of $35hr rate falls a long way short of what I am currently earning.
To start with I would need to buy more tools and tool boxes (etc) to carry out workshop tasks .As you can appreciate the scope of tools needed to do RACQ roadside is considerably less
than in a workshop .
I would not be working as many hours and a battery bonus which made up our salary will be lost in income each year which is a considerable amount.
I now have to travel 86 km every day if I was to work in Noosa, or 160km if I was to commence work in Gympie.
Simon informed me that the majority of work is in Gympie .
So as you can see I only travel 40km once a fortnight in my own vehicle to commence work when working for Madills as a RACQ roadside assistant.
The position that Madills is offering me is going to severely impact my life as well as income.
Mr Menzel argued that the battery bonus was, at least for him, $10,000.00 annually. He also suggested that he “would be out of pocket conservatively $20,000 or more which would include travel costs and maintenance to my vehicle”.
The Ability of the Respondent to direct the Applicants to undertake new duties
In some ways, the Respondent’s argument is back-to-front. The Respondent essentially argues that because suitable alternative employment (or “commensurate” to use the Respondent’s word) was offered and the employees did not accept it, and took new positions with a different employer, then there was no termination to begin with. However, it must first be considered that the Respondent told the Applicants that their role was no required and that the work they would be doing was of a different kind to what they originally been performing.
Clause 24 of the employment contract which I have been provided with requires:
24. VARIATION OF TERMS
The terms of the Contract may be varied from time to time by mutual agreement in writing between the parties.
I have seen no evidence of any mutual agreement in writing to vary the employment contracts.
As noted above, it is very common for an employment contract to include a broad power for the employer to direct the employee to perform “other duties”.
The clause should be read in context:
4. POSITION AND TITLE
4.1 You are employed on a full time basis in the position described at Item 3 of the Schedule [Roadside Technician]
4.2 You may be required to perform other tasks from time to time, as reasonably requested by the Employer.
Read in context, clause 4.2 cannot sensibly be construed to mean that the employer can direct the employee to perform any other tasks, for any duration of time. The clause is clearly directed to ad hoc duties and is further limited by the term “reasonably requested”. I consider that the request for the affected employees to perform Service Technician and Trade Assistant roles without consent was not a reasonable request, as they were not ad hoc duties but a permanent reassignment and, further, there were differences in the kind of work to be performed from that of a Roadside Technician.
The Applicants in this matter were employed specifically in the role of Roadside Technician in their contract, based on the evidence before me. I place weight on the fact that the Applicants accepted a role which was specifically stated to be as a Roadside Technician. The contract should be interpreted in a way that gives effect to the objective intention of both parties.
Conclusion on whether the Applicants were terminated within the meaning of s.119(1) of the Act?
As to the location of the work to be performed, I note that the Applicants were concerned by working at either Noosa or Gympie. The employees who had already been contracted to work at either Noosa or Maroochydore could not object to working in Noosa on the basis of location, despite the fact that the drive would cause wear and tear to their personal car. It would clearly have been lawful for the employer to direct them to work at Noosa when their place of employment in the contract is stated to be Noosa. However, I accept that Gympie is further away. The majority of the Applicants are based on the Sunshine Coast. A direction to perform work in Gympie, would not, in view, fall within clause 7.2 of the contract:
7. PLACE OF EMPLOYMENT
7.1 The Employer's current primary business location is described In Item 6 of the Schedule [Noosa and Maroochydore],
7.2 You will be required to work at this location, unless otherwise reasonably requested by the Employer.
7.3 You may also be required to travel as reasonably necessary for the performance of your duties.
The request to work at a different location is qualified by the phrase “reasonably required”.
I note that it is not clear whether the Applicants would have been required to work solely in Noosa or Gympie. Although the letter of 6 December 2024 sent to the Applicants noted the location was Noosa, the Applicants claim that they had been verbally informed that the work would be in either Noosa or Gympie and Mr Menzel states that he was informed that the majority of the work would be in Gympie. Given the Respondent indicates that some sort of concession was to be made with respect to location upon transfer, I will give that concession due weight.
For the Applicants who were offered the Service Technician role, I consider that the following changes are significant:
Change in responsibilities
1.The Applicants’ daily responsibilities of performing roadside assistance services were no longer required.
2.Where the Applicants would have previously delegated the tasks of performing vehicle repairs to a mechanic and sending the vehicle off in a tow truck, they would now be required to perform repairs themselves, in a workshop.
3.The Applicants would be held to new performances standards, namely “minimum of 95% productivity is achieved with an efficiency of 95%”
Change in supervision
4.The Applicants would now be working under the direct supervision of a Foreman in a workshop rather than performing their duties on the road without direct supervision
Change in remuneration
5.The Applicants would no longer receive a battery sales bonus but would receive a tool allowance of $13.86 per week
6.The Applicants hours would be reduced by approximately 10% from approximately 42 hours per week to 38 hours per week.
For the Applicants who were offered the Trade Assistant role, I consider that the following changes are significant:
Change in responsibilities
1.The Applicants’ daily responsibilities of performing roadside assistance services were no longer required.
2.The Applicants would be required to perform customer service duties and liaise with the service advisor and service manager about any service problems which may affect customers
3.The Applicants would assist a qualified mechanic and would be responsible for task such as washing cars and blacking tyres.
Change in supervision
4.The Applicants would now be reporting to the Service Manager rather than performing their duties on the road without direct supervision.
Change in remuneration
5.The Applicants would no longer receive a battery sales bonus but would receive a tool allowance of $13.86 per week
6.The Applicants hours would be reduced by approximately 10% from approximately 42 hours per week to 38 hours per week.
These changes, together with a potential change in location, were all to take effect from 10 December 2024, rather than being a natural development over a period of time. Taken together, these changes in employment, for both the Service Technician and Trade Assistant roles, are significant and amount to a repudiation of the existing employment contract which had noted that the Applicant were employed as Roadside Technicians. I have further taken into account the views of Deputy President Hampton in Ucinek and note that unlike in that matter these changes were more than reasonable apprehensions of change, the changes were to take definite effect from 10 December 2024.
It is very clear that the Applicants did not agree to the changes – they informed the Respondent that they would not accept the new role. It is well accepted that contractual repudiation in Australia requires the other party to elect to either waive the repudiation or to terminate the contract. In my view, the Applicant clearly elected to terminate the contract – first they indicated in writing that they would not accept the redeployment offer on 24 November 2024. Secondly, they lodged a dispute in the Commission contesting the Respondent’s redeployment proposal and requesting that they be paid a redundancy. Thirdly, they did not arrive at work on 10 December 2024 and some affected employees wrote directly to the Respondent indicating that they did not accept the proposal. They therefore accepted the repudiation and elected to terminate the contract. The termination was therefore at the initiative of the employer.
Even if I am wrong in finding that the contract was repudiated, I would find that the change of duties amounted to a demotion due to the reduced remuneration the Applicants would receive. While the Applicants’ hourly pay would remain the same, their weekly hours, and consequently their weekly pay, would be reduced by 10%, they would no longer receive a Commission bonus and the hours they would work would not attract the same overtime as before. While commission bonuses are conditional upon meeting certain KPIs, and are therefore not guaranteed, the lack of a bonus scheme means necessarily reduces the amount which the Applicants could earn in their role. The reduction in hours worked would also reduce their leave accruals. Given the reduction in remuneration would be significant, this qualifies as a demotion within the meaning of s.386 of the Act. I refer to the Full Bench decision of NSW Trains v James in which the Applicant’s remuneration was reduced by 10%. The majority of the Full Bench commented in obiter that the Appellant had not established that the finding that a 10% reduction in remuneration was significant was in error:
[158] The Respondent submits that the Deputy President was correct to find that a significant reduction in remuneration or duties is one which is important, or notable, or of consequence, having regard to its context and intensity. The purpose of the adjective “significant” is to exclude impacts that are properly seen as minor or unlikely.
[159] The Respondent submits that whether a reduction in remuneration or duties is “significant” is an objective test, having regard to all the relevant circumstances.
[160] The Respondent contends that the demotion of Mr James resulted in NSW Trains reducing his remuneration by almost 10%. As noted in the Decision (at [33]), there are other flow on effects, including a decrease to the value of Mr James' accrued annual leave entitlements, accrued long service leave entitlements, superannuation benefits and, importantly and relevantly, Mr James' redundancy pay benefits. It is submitted that on no view can such a reduction in remuneration be regarded as minor.
[161] We agree that the expression “significant reduction [in remuneration or duties]” takes its ordinary meaning as being a reduction that is “important; of consequence”. Previous AIRC and Commission decisions give an indication of the magnitude of a reduction that may constitute a significant reduction. We also agree that whether a reduction in remuneration or duties is “significant” is an objective test, having regard to all the circumstances.
[162] While we do not need to decide this point in view of our overall conclusion that Mr James' demotion does not constitute a dismissal within the meaning of s 386(1)(a), we are not satisfied that the Appellant has established a significant error of fact in relation to the Deputy President's finding of a significant reduction in remuneration. Accordingly, this appeal ground is dismissed.
(footnotes omitted)
Therefore, I find that the Applicants’ employment was terminated within the meaning of s.119(1) of the Act. The employment was terminated because the Respondent no longer needed the Roadside Technician job to be done by anyone.
Given I have found that the Applicants were terminated at the Respondent’s initiative, it is not strictly necessary to consider the alternative argument, which was faintly put forward by some of the Applicants, that they were forced to resign. However, I wish to make some comments on the process followed by the Respondent.
I am sympathetic to the Respondent’s view that, as a matter of courtesy, the employees should indicate whether they are staying or going so that the employer can make appropriate arrangements. It was not unreasonable for the Respondent to make that request.
However, the Applicants also raised cogent points that they could not properly respond to the redeployment offer as they were not given enough detail. After being advised during a conference to set out the redeployment offer in writing, the letters which were sent to employees on 7 December 2024 were lacking in detail.
The Respondent did not follow best practice when consulting with their employees, which led to the Applicants feeling like they were forced to resign. Employers should be careful of the wording they use so they do not mislead employees, whether intentionally or not. In this case, Mr Guthrie encouraged employees to meet with Club Assist and organised for RACQ to speak to employees onsite. While Mr Guthrie appears to have been trying to do the best thing by his employees, he should have clarified to employees that there was no agreement for Club Assist to provide continuity of service for employees who moved to Club Assist.
Whether consultation requirements under clause 35 were met
As noted above, the Applicants argue that there was a lack of consultation. It is unclear what turns on this lack of consultation – for example, there is no suggestion that the Commission has the power to reinstate the Applicants under s.739.
Clause 35 of the Award provides as follows:
35. Consultation about major workplace change
35.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on
employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
35.2For the purposes of the discussion under clause 35.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
35.3 Clause 35.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
35.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 35.1(b).
35.5 In clause 35 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or(f)the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
35.6 Where this award makes provision for alteration of any of the matters defined at clause 35.5, such alteration is taken not to have significant effect.
The Applicants contest that the consultation clause was complied with, primarily because details of the changes were not given “in writing” as per clause 35.2. The Respondent argued that: “This consultation clause does not require notice of such change as is being considered in this matter to be in writing”[19]. The Respondent appears to proceed on an assumption that because they lost the contract, this clause does not apply. However, it was the Respondent who, after the contract had been terminated, made a “definite decision” that the Roadside Technician positions were no longer required and that the Applicants would be redeployed.
Whether the Respondent wanted to make the decision to make the positions redundant is irrelevant. It would be a fair statement that most employers do not want to make employees redundant.
In WorkPac Mining Pty Ltd v Botiki & Ors[2021] FWCFB 3325, the Full Bench stated:
In any event, there is nothing unusual about major changes in a business occurring in response to a decision made by an external client affecting the demand for the business’ services; this may occur in a range of industry contexts, not just the labour hire industry, and it has never been taken to mean so far as we are aware that the major change has occurred absent any decision being taken by the business.[20]
Deputy President Boyce considered a similar issue in Davison v DHL Supply Chain (Australia) Pty Ltd[2021] FWC 4573 where the Applicant was made redundant as a result of a lost third-party contract:
Whilst the change at the AP2 site arose from SA's decision to cease its contract with the Respondent, the decision to make any change, and the scope of the change to be made, was squarely the prerogative of the Respondent. In other words, the changes made at the AP2 site were determined by the Respondent. In my view, the fact that any change to the Respondent's operations flowed from the loss of a contract with a third party does not alter the fact that any decision to make changes at the Respondent's workplace (i.e. at the AP2 site), flowing from the loss of the SA contract, was a decision of the Respondent.[21]
The change would plainly result in “significant effects” within the meaning of clause 35.5 including at least, on the Respondent’s understanding at the time, potential transfer to another location. Therefore, consultation was required.
The without prejudice letters sent by the Applicants to the Respondent on 24 November 2024 states as follows:
To date, I have not received any official notification in writing advising me of the cessation of RACQ roadside assistance activities with Madill Motor Group. A phone call does not meet your requirements as an employer to advise staff of changes to their contracted employment, proposed date of final operations, or options regarding termination, redeployment offers and redundancy.
I have accommodated Madill Motor Group in their request for a meeting to discuss the situation, at which, no written confirmation of any changes to contract or employment conditions/locations was supplied. The only written information I have received is a job description of a proposed rote within the organisation, with no commencement date, no written notice of payrate, and no notice of when RACQ duties will cease. Again, verbal information is not sufficient in this situation.
The Applicants were first informed of changes during a telephone call of 28 October 2024. I agree that the Respondent should had sent the affected employees a letter after the telephone call confirming what was said during the call. However, I must reject the argument put forward by the Applicants that everything said in that phone call was “hearsay” and cannot be relied upon at all. Plainly, the affected employees were aware that the contract was ending and that this would lead to their roles being made redundant.
Further, the argument that the Respondent is required to disclose the reasons why the RACQ contract was not renewed is rejected. The employer is not required to disclose confidential commercial discussions.
Further, I note that on 8 November 2024, Ms Brown sent emails to affected employees inviting them to attend a meeting in person:
We understand this major change for our business has created uncertainty and concerns for some of you affected by the ending of our RACQ contract.
During Simon Guthrie's conversation with you on 28 October, 2024, he suggested it would be best for you to meet with Club Assist and discuss their opportunities being offered to you and then to contact me to arrange a suitable day and time to come back to us individually to discuss options available for you, should you prefer to stay within our employ.
In fact, the modern award which covers your terms and conditions of employment being the Vehicle Repair Services and Retail Award 2020 requires us to meet with you about the possible impact of this major change, and not just correspond in writing.
We encourage you to come and meet with us about this during days when you are working. It is not appropriate for us to continue to correspond about this change. If there are existing documents you require such as your employment contract and payslips, then please ask and you will be sent copies.
We would really appreciate the opportunity to sit down with you individually to discuss roles that would be suited to your skill set within the business and the location of those roles, as did Club Assist. Obviously as each person’s skills, qualifications and experience are unique, there will be slightly different roles which are suited to each employee. We are concerned that many of you have not met with us since we first informed you of this major change on 28/10/24.
We can confirm our assurances that the roles we have for you will be on a comparable pay rate and will be a similar role. Please understand, while your current position as a Roadside Assistance Technician will be redundant within our business, your employment with us will not be when our contract with RACQ finishes. This means your employment will not end because of redundancy.
We again ask you to meet with us individually to discuss positions we have available as your employment will continue should you not tender your resignation when you choose to take up one of the positions with Club Assist.
We understand you may have concerns if you’re required to give 4 or 3 week’s notice but are happy to amend that to 2 week’s notice required so you can make your decision by 25 November, 2024.
We look forward to meeting with you soon and have tentatively set aside 20, 21 & 22 November at this stage to discuss the roles we have. Lucas will confirm suitable times during your shift on one of those days to come to Noosa to meet with us, once he returns on the 18th. Please confirm your attendance via email, should you choose to attend, once you have a day and time set aside with Lucas, so that we know to expect you.
(emphasis added)
I consider that the Respondent’s failure to advise in writing of the ending of the RACQ contract was ameliorated by the email of 8 November 2024 which notes that the RACQ contract will finish, that the Roadside Technician role will be redundant and that redeployment options are available. The email also notes that the employee can give two weeks’ notice and has until 25 November 2024 to make a decision about whether they stay. I consider that this email fulfilled the Respondent’s requirements to give notice of the major change in writing.
There is, however, a perversity to the Respondent’s contention that the employee is obliged to take positive steps to meet with the employer. As the Respondent is the one notifying of the change, even if the change is not caused their own doing, they are required to consult with the employees. The Respondent is obliged to engage in discussions as “as soon as practicable” after the decision is made. The employer should not wait for employees to contact them first. Best practice would be to initially conduct group consultation meetings to discuss the change, perhaps via videoconference if the employees are spread out. The Respondent could then invite individual employees to meet with them to discuss redeployment options.
I note that whilst the invitation to attend a meeting was sent on 8 November 2024, the meetings were not held until 20 to 22 November 2024. One could question whether this was “as soon as practicable after a definite decision has been made”, as is required by the Award. However, I note the Respondent’s justification for the delay was that the key staff were on leave in the intervening period. I accept, on balance, this justification but note that consultations meetings with employees should be made a priority.
The Respondent held the following meetings with affected employees:
Mr Davidson attended an in-person meeting with the Respondent on 20 November 2024. He was provided with a printed job description for a Service Technician role, stated to be in Gympie.
Mr Lettres had a meeting on 22 November 2024 with the Respondent in person at Maroochydore. He was provided with a job description for a Trade Assistant role.
Mr Jones attended an in-person meeting and was provided with a job description for a Service Technician role.
Mr Davidson attended an in-person meeting on 22 November 2024 and was provided with a job description for the Service Technician role.
Mr Collis attended a meeting on 20 November 2024 and was provided with a job description.
Mr Menzel attended a meeting on 20 November 2024 was provided with a job description for the Service Technician role.
I accept that there was a degree of accommodation by the Respondent, in that the Respondent took into account where the Applicants lived and their skillset when deciding whether to redeploy them as Trade Assistants or Service Technicians. I note the Respondent is required to consider matters raised by the employees during the consultation meetings. I have not been provided with great detail of what was said in those meetings but it seems the primary concern raised by the Applicants was the location of the job. The Respondent asserts that the employees were told that the location would be “subject to confirmation of final placements and there may be some flexibility in the future.” Indeed, despite having been told that the locations of their new roles would be Gympie, by the rime the
On balance, I find that the Respondent met the consultation requirements of clause 35 of the Award. However, I wish to underscore my concerns that the Respondent seems to have formed a view that employees are required to initiate consultation discussions. This is plainly not the requirement under the Award.
Whether Clause 39 of the Award was complied with
Clause 39 of the Award states:
39. Redundancy
NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act.
39.1 Transfer to lower paid duties on redundancy
(a)Clause 39.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.
(b)The employer may:
(i)give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
(ii)transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in clause 39.1(c).
(c)If the employer acts as mentioned in clause 39.1(b)(ii), the employee is entitled
to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
39.2 Employee leaving during redundancy notice period
(a)An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.
(b)The employee is entitled to receive the benefits and payments they would have
received under clause 39 or under sections 119 to 123 of the Act had they remained in employment until the expiry of the notice.
(c)However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
39.3 Job search entitlement
(a)Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.
(b) If an employee is allowed time off without loss of pay of more than one day
under clause 39.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.
(c)A statutory declaration is sufficient for the purpose of clause 39.3(b).
(d)An employee who fails to produce proof when required under clause 39.3(b) is not entitled to be paid for the time off.
(e)This entitlement applies instead of clause 38.2.
I note that if the Applicants had waived the repudiation and accepted the transfer, they would, in my view have been entitled to payment under cl. 39.1.
As to clause 39.3, the Respondent argues that it allowed the Applicants to attend meetings and interviews with RACQ.[22] The Applicants contest this, saying that they attended their interviews with Club Assist during their rostered time off. I note employees were offered a $750 incentive to maintain a 90% KPI and not take more than one day of sick leave during the notice period. As per the Award, the Applicants were entitled an opportunity to attend job interviews up to one day a week during their paid rostered hours. However, there is also no indication that the employees asked to be released to attend interviews during their rostered hours. There is not enough evidence to substantiate a finding that clause 39 was not complied with.
Conclusion
I have found that the Applicants were terminated at the Respondent’s initiative and are therefore entitled a redundancy payment under s.119(1) of the Fair Work Act. I must emphasise that this decision turns on its facts and that not every variation of an employee’s duties will result in a finding that the employee has been terminated.
I have advised the Respondent previously to lodge a s.120 application in the Fair Work Commission.
My answer to the question for arbitration is as follows:
On a proper construction of the consultation obligations imposed by clause 35 and clause 39 of the MA000089 Vehicle Repair, Services and Retail Award 2020, did the employer meet these obligations in relation to redundancies of the affected employees? Yes
I have not received submissions from the Applicants which articulate how I have power to order the Respondent to a pay a redundancy under s.739 of the Act, except submissions to the effect of “the Fair Work Ombudsman told me you could”. The Award only contemplates that I may make an order delaying the redundancy payment. The question of whether the Commission has power to issue orders through a s.739 decision is vexed. In my view, even if I had a power to order the Respondent to pay the redundancy entitlements, I would not do so for the simple fact it remains open to the employer to seek to have those redundancy entitlements varied on the basis that redeployment was obtained, which they say was suitable.
If the Respondent does not either make payment of the Applicants’ redundancy pay or apply for the redundancy pay to be varied under s.120 within 7 days of the date of this decision, then it would be available for the Applicants take immediate action for enforcement in a court of competent jurisdiction. I note that a breach of the NES attracts civil penalties under s.44 of the Fair Work Act.
DEPUTY PRESIDENT
Matter determined on the papers
[1] The Respondent’s name was amended to “Madill No 1 Pty. Ltd” under s.586(a) of the Fair Work Act to reflect the ASIC records and for consistency across all the applications
[2] Letters from the Respondent to the Applicants dated 26 November 2-24
[3] Email from Mr Lettres to Ms Brown dated 1 November 2024
[4] Respondent submissions (b) [7]
[5] [2025] FWC 1300
[6] (1984) 8 IR 34
[7] (1984) 8 IR 34 at 73
[8] (1984) 9 IR 115
[9] Ibid 128
[10] Ibid 134-135
[11] Michael Carroll Reply Submissions
[12] Benjamin Lettres reply submissions [7] to [11]
[13] Scott Menzel reply submissions
[14] [2024] FWC 981
[15] [2024] FWC 981 at [121]
[16] Mr Lettres initial submissions letter dated 22 November 2024
[17] Mr Lettres Reply Submissions [11]
[18] Collis Submissions [9]
[19] Respondent Submissions (b) [5]
[20] WorkPac Mining Pty Ltd v Botiki & Ors[2021] FWCFB 3325 at [27].
[21] [2021] FWC 4573 at [36]
[22] Respondent Submissions [11]
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