DECISION

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

Serco Sodexo Defence Services Pty Ltd (SSDS)
(C2014/6410, C2014/6387, C2014/6392 & C2014/6405)

COMMISSIONER ROE

MELBOURNE, 3 FEBRUARY 2015

Application to vary redundancy pay for other employment - QLD.

[1] Serco Sodexo Defence Services Pty Ltd (SSDS) has made a number of applications seeking to have the redundancy payments, due to a significant number of SSDS employees who were made redundant as a result of the loss of the defence contracts, reduced to nil, or an amount to be determined by the Commission. SSDS argues that it has obtained other acceptable employment for these employees, primarily with the incoming contractors. SSDS argues that its actions caused the job opportunity to become available to each of the SSDS employees who received a job offer from an incoming contractor and that SSDS was a strong moving force towards the creation of the available opportunities.

[2] The Fair Work Commission is first considering whether or not SSDS has obtained alternative employment with the incoming contractors for its employees and whether or not that employment is on acceptable terms and conditions. If the Commission concludes that SSDS has obtained acceptable alternative employment then the Commission will, in a second stage hearing, ensure that affected employees are notified and have an opportunity to raise the particular circumstances of any employment offer made to them. If the Commission concludes that acceptable alternative employment has been found in the particular circumstances of an employee the Commission will then determine what reduction, if any, should apply to their redundancy payment.

[3] I have heard these matters in three parts:

● The Northern Territory/Kimberly contract ended on 30 September 2014. The Fair Work Commission considered arguments and evidence from SSDS, the relevant unions and the incoming contractors on the 2nd, 8th and 14th of October 2014. I issued a decision on 31 October 2014. 1 I determined that SSDS had not obtained acceptable employment for SSDS employees with the incoming contractors and I dismissed the SSDS applications. SSDS has appealed this decision.

● The NSW/ACT contracts ended on 31 October 2014. I considered evidence in respect to these contracts on the 17th to 19th of November 2014 with further documents from the incoming contractors and the final written submissions being received by 5 December 2014. I issued a decision on 27 January 2015. I determined that SSDS had not obtained acceptable alternative employment with the incoming contractors except for MSS. I have not made a final determination in respect to MSS.

● The Queensland contract ended on 30 November 2014. I heard arguments and evidence in respect to this matter on the 16th to 18th of December 2014.This decision is in respect to the Queensland contracts.

[4] The parties agreed that I should have regard to relevant evidence and submissions from the hearings of the Northern Territory/Kimberly and the NSW/ACT contracts in dealing with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 772
Decision Date: 3 February 2015

CaseChat Overview and Summary

Serco Sodexo Defence Services Pty Ltd (SSDS) applied to the Fair Work Commission (FWC) seeking to reduce the redundancy payments it was obliged to pay to its employees who were made redundant following the loss of defence contracts. The FWC was required to determine whether SSDS had obtained other acceptable employment for its employees, and if so, whether it was a "strong moving force" in doing so, which would permit the reduction of redundancy payments. The court examined the evidence of SSDS's efforts to assist employees in obtaining employment with incoming contractors, and whether these efforts were sufficient to cause acceptable alternative employment to become available to each of the redundant employees.

The FWC found that SSDS had not taken sufficient action to be considered a "strong moving force" in obtaining acceptable alternative employment for its employees. While SSDS provided some assistance to employees, such as helping them with resume preparation and providing information about job opportunities, these actions were not sufficient to cause acceptable alternative employment to become available to each of the redundant employees. The FWC noted that the actions of the incoming contractors and the employees themselves were the primary factors in determining employment outcomes. The FWC also found that the alternative employment offered by the incoming contractors was generally acceptable, but it would not be appropriate to reduce redundancy entitlements to nil without considering individual circumstances and providing affected employees an opportunity to be heard.

As a result, the FWC dismissed SSDS's applications to reduce redundancy payments for its employees employed under the Queensland contract with the incoming contractors. SSDS was required to advise the FWC and the other parties within seven days if there were any other employees in respect to whom it was seeking to be heard in respect to its applications in relation to the Queensland contract.

Orders