Shop, Distributive and Allied Employees Association v Coles Group Supply Chain Pty Ltd - [2014] FWC 395

[2014] FWC 395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Shop, Distributive and Allied Employees Association
v
Coles Group Supply Chain Pty Ltd
(C2013/5549)

COMMISSIONER WILLIAMS

PERTH, 22 JANUARY 2014

Application to deal with a dispute.

[1] This decision deals with an application made by the Shop, Distributive and Allied Employees Association (the Union or the applicant) under the Dispute Resolution Procedure, Clause 7, of the Coles Liquor Distribution Centre WA Agreement 2011 [AE885276] (the Liquor Agreement). The respondent is the Coles Group Supply Chain Pty Ltd (Coles or the respondent).

[2] There is no dispute, and I accept, that the Commission has jurisdiction to arbitrate this dispute by virtue of section 739 of the Fair Work Act 2009 (the Act) and the terms of sub clause 7.5 of Clause 7−Dispute Resolution of the Liquor Agreement.

Introduction

[3] On 26 August 2013 (the Transfer Date), Coles relocated the work performed at its Liquor Distribution Centre on Colquhuon Drive, Kewdale, Western Australia (the Liquor DC) by employees engaged under the Liquor Agreement to its Grocery Distribution Centre located at 136 Horrie Miller Drive, Kewdale, Western Australia (the Grocery DC). From that date, the combined liquor and grocery functions of Coles’ operations were performed from the Grocery DC.

[4] The applicant on behalf of a group of employees is seeking a declaration that these employees are entitled to severance payments calculated in accordance with sub clause 12.3 of Clause 12−Redundancy of the Liquor Agreement.

[5] In response, Coles initially submitted that the provisions of Clause 12 of the Liquor Agreement have no application because the employment of these employees has not been terminated. Rather the location of their work has changed; and the roles performed by these employees at the Grocery DC consist of duties that each of these employees could have been directed to perform at the Liquor DC because these fall within the relevant classifications in the Liquor Agreement.

[6] Through the course of the proceedings however Coles has effectively conceded that the conditions required for sub clause 12.1 of Clause 12−Redundancy to apply have been met and so absent an order of the Commission under sub clause 12.5−Alternative Employment of Clause12−Redundancy severance pay is payable to these employees under sub clause 12.3−Severance Pay.

[7] Coles however argues that the roles these employees will perform at the Grocery DC coupled with agreement between the parties as to the terms and conditions which shall apply to the employees constitute “acceptable alternative employment” for the purposes of sub clause 12.5 of the Liquor Agreement. Given this Coles is applying under sub clause 12.5−Alternative Employment of Clause 12−Redundancy for the Commission to vary the general severance pay prescription so that nil severance pay is payable to the employees.

[8] It is acknowledged by the applicant that it is open to the respondent as part of its reply to this application to make this application under sub clause 12.5−Alternative Employment as it has done 1.

[9] The central question to be determined for each employee is whether Coles has obtained acceptable alternative employment for them and if so what variation should be made to the general severance pay prescription in sub clause 12.3 of the Liquor Agreement.

Agreed Facts

[10] The parties have settled a Statement of Agreed Facts which relevantly is as follows.

[11] The employees are Aubrey Labrooy, Dean DeBari, Rodney Lines, Stevie Liew, Guy Di Perna, Donna Flower, Neil Richardson, Paul Wallwork and Khim Lee (the Employees).

[12] Pending the resolution of these proceedings, the respondent has agreed to continue to employ the Employees on their current terms and conditions under the Liquor Agreement. That is the “status quo” prevails. But for the respondent agreeing to continue their employment, the Employees would otherwise have been terminated on 26 August 2013.

Coles’ operations

[13] Among other things, Coles is involved in the logistics of the transfer of goods from suppliers to stores throught its distribution centres.

[14] Broadly, this process involves:

receiving goods from suppliers;

placing goods on racking in the distribution centre; and

distributing goods to stores and supermarkets in accordance with orders received.

[15] Prior to the Transfer Date, Coles operated the two distribution centres in Perth, being:

the Liquor DC, located on Colquhuon Drive, Kewdale, Western Australia. The Liquor DC serviced liquor stores in Western Australia; and

the Grocery DC, located at 136 Horrie Millar Drive, Kewdale, Western Australia. The Grocery DC serviced stores and supermarkets in Western Australia.

[16] The Liquor DC and the Grocery DC are approximately 500 metres apart.

[17] The Liquor Agreement has four classifications; Team Member in Training (employees who are in the training period as outlined below), Team Member Level 1 (TML1), Team Member Level 2 (TML2) and Team Leader (Team Leader).

[18] Prior to the Transfer Date, the Employees were engaged under the following classifications in the Liquor Agreement:

Aubrey Labrooy — Team Leader;

Dean DeBari — Team Leader;

Rodney Lines — Team Leader;

Stevie Liew — TML2;

Guy Di Perna — TML2;

Donna Flower — TML1;

Neil Richardson — TML1 (there is a dispute between the parties as to the correct classification under the Liquor Agreement);

Paul Wallwork — TML1; and

Khim Lee — TML1 (there is a dispute between the parties as to the correct classification under the Liquor Agreement).

[19] Currently, other than the Employees, non-salaried persons who perform work at the Grocery DC are employed pursuant to Coles Kewdale Distribution Centre WA Agreement 2011 [AE886476](the Grocery Agreement).

[20] The Grocery Agreement has two classifications; Team Member in Training (employees who are in the training period as outlined below) and Team Member.

The Grocery DC — pre-relocation

[21] Prior to the transfer, the Grocery DC employed 600-750 persons (depending on demand in seasonal peak times). This included 45 salaried persons (who are not covered by the Grocery Agreement) and the following persons who were employed pursuant to the classifications in the Grocery Agreement:

30 Team Members in Training; and

500 Team Members (Team Members).

[22] When persons are first employed at the Grocery DC, they start as a “Team Member In Training” while they complete their training period (which is 3 months for full time employees or 6 months/494 hours (whichever is completed first) for non-full time employees). Upon commencement, they receive training and induction for 5 consecutive days consisting of a combination of 3 days of classroom-style learning and 2 days of practical skills training in the distribution centre.

[23] Following this initial induction, the Grocery DC operates under the “3-7-11” probationary review system; that is, after 3 weeks, 7 weeks and 11 weeks, each employee meets with their Team Managers to discuss their performance, receive any necessary coaching or additional training and discuss their career path. At all stages during the probationary period, the employees’ suitability for the role is also assessed under Coles’ normal probationary period review process.

[24] At the 7 week mark, these meetings include discussions about how the relevant employee can progress to a “+1” skill level and learn the required skills for that progression.

[25] Interest for further training and “up-skilling” then gets confirmed at the 11 week meeting. As per company policy, all persons engaged at the Grocery DC, pursuant to the Grocery Agreement, are required to pick.

[26] The “+1” refers to an additional skill that the employee holds in addition to being a picker, for example forklift driver, inventory worker, receiving officer, cleaner, clerical, trainer, dispatcher, receiver, loader, etc. A Team Member can have more than one “+1” (i.e. they can be a picker plus a forklift worker, plus a loader etc).

The Liquor DC — pre-relocation

[27] Persons working at the Liquor DC prior to the Transfer Date who were engaged under a specified classification were covered by the Liquor Agreement. The Liquor Agreement nominally expired on 31 March 2013, however an extension to this nominal agreement was agreed between the parties to September 2013.

[28] Prior to the relocation, approximately 40-50 persons were employed at the Liquor DC. This included 3 salaried persons and the following persons who were employed pursuant to the classifications in the Liquor Agreement:

3 Team Leaders “Operations” and 2 Team Leader “Administration” (Team Leader);

2 TML2;

32 TML1; and

0 Team Members in Training.

[29] These employees were employed in either a full-time, part-time or casual capacity.

[30] As outlined above, the parties are currently in dispute about the classifications of Mr Khim Lee and Mr Neil Richardson. However, the figures outlined above are based upon classifications specified in Mr Lee’s and Mr Richardson’s employment contracts.

[31] The Liquor DC has been separated from the Grocery DC for a long period. The Liquor DC operations were once administered through a sub-contractor (for approximately 13 years) prior to becoming part of the Coles Group. Although the Liquor DC was once located in Canning Vale (across the road from the Grocery DC), its relocation from Canning Vale to the Liquor DC in Kewdale occurred at a different time, following a different business strategy.

[32] When persons are first employed at the Liquor DC they are “Team Members In Training”. The same process that applies at the Grocery DC (as outlined in paragraphs [23] to [26] above) also applies at the Liquor DC.

[33] TML1s who wish to be selected to the TML2 classification are required to have acquired additional skills or undergo further training to obtain qualifications in an advanced skill set (e.g. training).

[34] The Team Leader role is one step higher than TML2. The duties that may be required are as outlined in sub clause 5.1(c) and 5.7(c) of the Liquor Agreement. Further, Team Leaders could have been assigned responsibility for a section of the Liquor DC, for example dispatch, inventory, or administration.

Rostering arrangements — the Liquor DC

[35] The Team Leaders were responsible for various areas of the Liquor DC (for example dispatch, receiving etc.) and with input from the Team Managers and the Distribution Centre Manager, would have a broad understanding of the needs for any particular day.

[36] There was a fairly stable distribution of work at the Liquor DC. TML1s and TML2s could be asked to perform a range of tasks (for example picking, administrative duties, forklift driving and dispatch). However, a TML1 or TML2 could gain substantial experience in a particular position and, due to that experience, perform that work for a long period of time.

Rostering arrangement — the Grocery DC

[37] Operations at the Grocery DC are on a much larger scale than at the Liquor DC; there are almost 20 times the number of non-salaried persons and because of the number of stores and supermarkets and volume of goods required to be transferred, there is a wider range of rostering needs. Additionally, people at the Grocery DC operate a 24/7 shift roster.

Correspondence with the SDA and the Employees about the relocation

[38] The relocation was first planned to take place in July/August 2012 but this date was postponed a number of times.

[39] On 17 August 2012, Coles sent a letter to the applicant entitled “Re: Closure of Coles Kewdale Liquor WA Distribution Centre” confirming Coles’ intention to direct the work currently being conducted at the Liquor DC to the Grocery DC and outlining Coles’ commitments to the transferring of employees, including the Employees.

[40] The history of the balance of the correspondence between the parties which is set out in the parties’ Statement of Agreed Facts is not directly relevant for the purposes of this decision and so has not been included.

[41] As outlined in its letter to Coles dated 7 September 2012 the applicant raised the concept of a “preserved rate” which compensated Team Leaders and TML2s for the decrease in base wage rate that they would experience in being transferred to the Team Member classification under the Grocery Agreement.

[42] Coles offered a hybrid structure which consisted of the highest amount between:

the employee’s “guaranteed preserved rate” and

the rate the employee would receive under the Grocery Agreement rate plus performance incentive,

as well as a lump sum payment.

[43] The rationale for the lump sum was that it would be an additional incentive for the Liquor DC employees to transfer to the Grocery DC. Employees would also be able to access the “productivity/performance based incentive” scheme (as outlined in Clause 10 of the Grocery Agreement) which operated at the Grocery DC but which did not operate at the Liquor DC, but only to the extent that their earnings under this scheme exceeded their “preserved rate”. The preserved amount was to be reduced progressively over time following scheduled rate increases.

[44] The Statement of Agreed Facts includes copies of the various letters sent by Coles to the applicant and to the individual employees which details the commitment’s Coles have made to continue providing some of the employment conditions from the Liquor DC to the employees whilst they work at the Grocery DC and also the details the additional payments to be made to those employees who continue working at the Grocery DC.

[45] Coles sent to each employee a letter dated 1 August 2013 which set out their final offer for the employees to transfer from the Liquor DC to the Grocery DC.

[46] Having detailed the conditions and remuneration the employee would receive at the Grocery DC the letter explained that Coles viewed the offer as acceptable alternative employment and that if the employee did not accept the offer Coles would terminate their employment effective at the date of transfer which was expected to be 23 August 2013. The letter also said that in such circumstances the employee will not be entitled to a severance payment under the Liquor Agreement. 2

[47] Work at the Liquor DC ceased on 26 August 2013 and employees were relocated from the Liquor DC to the Grocery DC. All employees (including the Employees) relocated, other than 5 employees who were made redundant on the basis that their role did not exist at the Grocery DC.

[48] The roles made redundant were related to wage Team Members engaged in roles which were cleaning and/or administrative in nature. Although these employees were offered redeployment to the Team Member role at the Grocery DC, the “core” nature of the Team Member role (i.e. a picker) was too far removed from the role they were initially employed to do (i.e. cleaning and administration) and the manual handling and its physical requirement would not have been suitable for these employees. Although some of these Team Members considered this (and other) redeployment options within the Coles Group, these 5 employees instead opted to end their employment with Coles.

[49] In relation to the other terms and conditions of employment that would apply to the Employees at the Grocery DC, the applicant and Coles agreed that the Employees would be transferred to the Grocery DC on the status quo, being that:

they would only be required to work with liquor (and would not be required to rotate through the grocery areas of the Grocery DC, unless they elected to do so);

the Liquor Agreement would continue to apply to their employment and they would continue to be paid the same wage rates; and

they would continue to work the same roster (9 day fortnight, Monday to Saturday) that they had worked at the Liquor DC.

The Liquor Agreement

[50] The redundancy clause of the relevant agreement is set out below:

“12. REDUNDANCY

12.1 Discussions Before Terminations

(a) Where the Company has made a definite decision that the Company no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the Company shall hold discussions with the employees directly affected and with the Union.

(b) The discussions shall take place as soon as is practicable and shall cover, amongst other matters the reasons the proposed terminations are required, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

(c) For the purposes of the discussion the Company shall, as soon as practicable, provide in writing to the employees concerned and the Union, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of employees normally employed and the period over which the terminations are likely to be carried out.

Provided that the Company shall not be required to disclose confidential information the disclosure of which would be detrimental to the Company’s interests.

12.2 Transfer to lower paid duties

Where an employee is transferred to lower paid duties for reasons set out in clause 12.1 above, the employee shall be entitled to the same period of notice of transfer as they would have been entitled to if they had been terminated, and the Company may make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new lower ordinary time rates for the number of weeks of notice still owing.

12.3 Severance Pay

(a) In addition to the period of notice provided in clause 11.1 of this Agreement, a permanent employee who was employed prior to the 7^th of August 2009 or a limited tenure employee who was employed prior to the 7^th of August 2009 and subsequently appointed to a permanent position whose employment is terminated for reasons set out above shall be entitled to the following amount of severance pay in respect of a continuous period of service:

i) Four weeks’ pay on termination, and,

ii) Four weeks’ pay for each completed year of service and, in addition, pro rata payment at this rate for completed months of service with respect to any part completed year provided that the payments made pursuant to paragraphs a) and b) of this subclause shall not total less than twenty week’s pay, and,

iii) Pro rata payment of long service leave to employees with more than twelve months' service, and,

iv) Payment of accrued, untaken sick leave, and,

v) Employees aged over 45 years shall receive an additional payment equal to 10 percent of the total of the amounts payable pursuant to paragraphs a) and b) of this subclause.

“Weeks’ Pay” means the ordinary time rate of pay for the employee concerned.

(b) Permanent employees engaged after the 7 August 2009 whose employment is terminated for reasons set out above shall, in addition to the period of notice provided in clause 11.1 of this Agreement, be entitled to severance pay as follows:

(i) Four weeks’ pay for each completed year of service plus a pro-rata amount for completed months of service in any part-completed year, capped at 52 weeks’ pay; and

(ii) For employees aged over 45 years at the date of termination, a further payment of one weeks' pay for each completed year of service plus a pro-rata amount for completed months of service in any part-completed year, capped at 15 weeks’ pay.

“Weeks’ Pay” means the ordinary time rate of pay for the employee concerned.

Severance payments available pursuant to this subclause shall not exceed the amount which the employee would have earned if employment with the Company had proceeded to the employee’s normal retirement date.

12.4 Employee Leaving During Notice

An employee whose employment is terminated for reasons set out in clause 12.1 above may terminate his or her employment during the period of notice in order to commence employment with another employer provided the employee provides proof of the alternative employment to the Company (which may take the form of a statutory declaration). The employee shall be entitled to the same benefits and payments under this clause had he or she remained with the Company until the expiry of such notice (with the exception of payment in lieu of notice).

12.5 Alternative Employment

The Company in a particular redundancy case may make application to Fair Work Australia to have the general severance pay prescription varied if the Company obtains acceptable alternative employment for an employee.

12.6 Time Off During Notice Period

(a) During the period of notice of termination given by the Company and employee shall be allowed up to one days’ time off without loss of pay during each week of notice for the purpose of seeking other employment.

(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the Company, be required to produce proof of attendance at an interview or they shall not receive payment for the time absent.

For this purpose a statutory declaration will be sufficient.

12.7 Notice to Centrelink

Where a decision has been made to terminate 15 or more employees in the circumstances outlined in clause 12.1 above, the Company shall notify Centrelink as soon as possible giving relevant information including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

12.8 Transfer of Business

The entitlements to Severance Pay in clause 12.3 are not applicable where:

(a) There is a transfer of business from one employer (in this subclause called the “the old employer”) to another employer (in this subclause called “the new employer”) and an employee who at the time of such transfer was a full-time or part-time employee of the old employer in that business becomes an employee of the new employer and:

(i) The continuity of the employment of the employee is deemed not to have been broken by reason of such transfer;

and

(ii) The period of employment which the employee has had with the old employer is deemed to be service of the employee with the new employer; or

(b) An employee rejects an offer of employment made by the new employer that:

(i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourbale than, the employee’s terms and conditions of employment with the old employer immediately before ceasing employment with the old employer; and

(ii) recognises the employee’s service with the old employer as continuous service with the new employer; and

(iii) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee;

provided that if there is a dispute about the terms and conditions of the offer of employment, an employee may make application to Fair Work Australia to resolve it.

In this subclause “transfer of business” has the same meaning as the definition of “transfer of business” in the Fair Work Act 2009.

12.9 Employees Exempted

This clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, or in the case of casual employees, apprentices, or employees engaged for a specific period of time or for a specified task or tasks.”

Principles

[51] The principles to be applied are well established. In Vicstaff Pty Ltd T/A Stratco v Bradley May; Malcolm McFerran [[2010] FWA 3141] Commissioner Bissett has usefully summarised the principles to be applied in a matter such as this as follows:

“[24] Matters relevant to determining if other employment obtained by the employer for the employee is ‘acceptable employment’ was considered in Derole where a Full Bench found:

What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others. (Original emphasis)

[25] In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd (Hot Tuna), a Full Bench of the Commission found that the onus rested on the employer making an application to vary redundancy pay to demonstrate that the alternative employment is acceptable. The determination of that issue may involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and travelling time. The determination of the question of acceptability of the employment however can only be done on the evaluation of the facts proved in evidence or otherwise established.

[26] Not all of the matters identified in Hot Tuna necessarily require consideration in each and every application – some will have greater or lesser applicability based on the facts in the case.

[27] In Von Bibra Robina Autovillage Pty Ltd (Von Bibra), Richards SDP found that:

…the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.

[28] The approach taken in Von Bibra is not inconsistent with the decision in Hot Tuna.

[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.

[31] In many cases considered, and that were referred to me, the alternative work to be undertaken was of the same or a very similar nature – clerical workers remained clerical worker– though with a different employer; manufacturing workers remained manufacturing workers – again with a different employer; inbound customer service workers continued to do phone-based customer service work – although with a different bonus structure applicable to the work.” (Endnotes omitted)

Submissions

Acceptable alternative employment

The respondent

[52] The respondent submits that each of the Employees could, in their roles at the Liquor DC, have been directed to pick. While, in practice, this may have occurred infrequently (or not at all), the ability for Coles to direct an employee to pick still existed. Further, Coles submits that:

the Grocery DC is very close in proximity to the Liquor DC and the change in travel does not impose a hardship on the Employees;

there are no duties that the Employees may be required to perform at the Grocery DC which they could not have been directed to perform at the Liquor DC and which are not within their skills and qualifications;

the operations performed at the Grocery DC are the same as those which were performed at the Liquor DC (i.e. the logistics of supplying product from a supplier to a store or supermarket), albeit on a larger scale;

the Employees will not experience any change to their job security or continuity of employment,

while TML2 and Team Leaders may perceive that they will suffer a loss in seniority, practically, they will be rostered in roles which accord with their skill set; and

the financial impact of the Relocation on the Employees will be minimal, taking into account Coles’ offer in relation to TML1, TML2 and Team Leaders. In addition, given that the Employees will now be eligible to participate in the Incentive Plan (which did not apply at the Liquor DC) and, if they satisfy the requirements of that Incentive Plan they may, in fact, earn more than they did at the Liquor DC.

[53] On this basis Coles submits that, taking into account the relevant criteria, the roles which are performed by the Employees at the Grocery DC amount to “acceptable alternative employment” for the purposes of sub clause 12.5 of the Liquor Agreement and therefore the Commission should exercise its discretion to reduce Coles’ obligation to pay any severance pay under sub clause 12.3 of the Liquor Agreement.

The applicant

[54] The applicant’s submissions on the issue of acceptable alternate employment are that the respondent’s assessment of the alternative positions involves a repeated failure to attend to the practical reality of what each employee’s job was, or had in substance become, prior to the Transfer Date. This represents a significant error in approach.

[55] As to the distinct considerations the respondent has addressed the applicant firstly submits that the physical proximity of the Grocery DC to the Liquor DC is not disputed and is of minimal weight in the circumstances.

[56] The respondent’s view regarding the duties the Employees could have been required to perform at the Grocery DC fails to properly attend to the substance of the work performed by each employee as a matter of practical reality, as opposed to mere possibilities not borne out by evidence of consistent practice.

[57] The applicant says the issue of unchanged job security or continuity of employment is inaccurate once the nature of the Employees’ jobs prior to the Transfer Date is appreciated.

[58] The applicant submits that assertions by the respondent that the Employees will suffer no loss of seniority because they will be rostered in roles that accord with their skill set is merely a self-serving prediction.

[59] The commitment by Coles to pay an additional preserved rate to employees who were Team Leaders or TML2 still means that over time the relativities will be eroded to the point where the previous Team Leaders are on the same rate as others who were not Team Leaders.

[60] In addition the potential benefits all employees may receive through the Incentive Plan which applies at the Grocery DC but which was not applicable at the Liquor DC is not capable of enforcement either with respect to a particular quantum or at all.

[61] Consequently the applicant says the Commission should conclude that none of the Employees have been offered acceptable alternative employment and should declare that they are entitled to severance payments under sub clause 12.3 of the Liquor Agreement.

Consideration

What are the duties to be compared?

[62] The parties disagree as to how the Commission should identify the duties of “...the job the employee has been doing...” (sub clause 12.1 (a)) that are to be compared with the duties of the “...alternative employment...” (sub clause 12.5) as one element of determining whether the alternative employment is acceptable.

[63] The applicant submits that the case law 3 supports the view that it is the actual work that was undertaken by an employee which determines the duties of the job they were doing as opposed to narrower concepts capable of subjective application such as position descriptions which the alternative employment is to be compared with. The applicant submits that it is the nature of an employee’s job applied practically and in a commonsense manner which will be critical.

[64] The respondent however submits that it is the duties an employee may have been able to be directed to perform in their old job versus the duties they may be directed to perform in the alternative employment that are relevant and to be compared. 4 The respondent’s position is that where there are a different mix of duties in the alternative employment compared with the old job, but no duties that were not performed in the old job and no duties the employee could not have been required to perform under the Liquor Agreement then the alternative employment would be acceptable.

[65] The definitions in sub clause 5.1(b) of Clause 5−Classification Structure of the Liquor Agreement say that:

“... Team Member 1 and 2 means an employee whose duties include but are not limited to one or more of the following:

receiving, machinery operation, picking, selecting, processing, sorting, checking, consignment note verifying, training, cleaning, counting and/all recording, storing, assembling, weighing, and/or wrapping/re-wrapping, branding, stacking, unpacking or dispatching in and from a distribution centre or administrative duties ancillary to the operation of a distribution centre.”(Emphasis added)

[66] Certainly picking is one of those duties mentioned however the definition expressly indicates Team Member 1 or 2 may only have one duty which for example could be receiving, machinery operation, training, dispatching or administrative duties instead of picking.

[67] The respondent’s position on what is to be compared in terms of the duties that make up the old job versus the alternative employment is problematic in the context of this definition which expressly allows a Team Member 1 or 2 to have a narrow scope of duties which does not include picking at all. The terms of the Liquor Agreement do not support the respondent’s argument that all employees at the Liquor DC may have been required to pick even though in practice some did not pick at all.

[68] Rather the definition above is more consistent with the applicant’s view that it is the reality of the duties each employee had been doing that is relevant and that the respondent’s assertion that all employees at the Liquor DC could have been directed to pick is irrelevant in cases where in fact picking was not part of the duties in the job the employee had actually been doing, or was undertaken rarely.

[69] I do not accept that the duties of an employee’s old job are the full suite of duties mentioned in the definition in the Liquor Agreement where the evidence is that this was not in practice what had been required of an individual employee for an extended period of time. The historical reality of what duties an employee was performing and would have in all likelihood continued to perform determines what their old job was and it is this to which the alternative employment is to be compared.

[70] I adopt a similar approach to the duties of the alternative employment. The acceptance of the reality of the past which I have explained above as to how the old jobs duties are identified applies equally to the alternative employment. For example the respondent submits that whilst under the Grocery Agreement employees operate under a “pick +1” arrangement in practice some of the employees who have a “+1” that is clearly in demand in the Grocery DC will not be required to pick at all or very rarely. If the evidence supports a finding that this will in all likelihood be the case for a particular employee then the duties of the alternative employment for that employee will be identified accordingly as predominately being their “+1” for the comparison with their old jobs duties.

The alternative employment for the individual employees

Aubrey Labrooy

[71] Mr Labrooy was a Team Leader at the Liquor DC and as such was not required to pick.

[72] The alternative employment offered is as a Team Member in the receivables area of the Grocery DC. His experience in receivables will be his “+1”

[73] This area already has a Team Manager.

[74] One of the differences in duties however is that he may be required to pick at times of peak demand. I do not view that as significant difference in duties as picking duties will be rare.

[75] The significant difference, however, for Mr Labrooy is that he will no longer have any supervisory or managerial responsibility. At the Liquor DC he was managing the receivable area and supervising a team of 4 to 5 people.

[76] Mr Labrooy has been told that there was a vacant Team Manager role at the Grocery DC and that he along with two other Liquor DC Team Leaders would each be automatically shortlisted and given an interview if they were interested.

[77] Mr Labrooy advised he did not want to be a Team Manager and did not apply for the position.

[78] I note that the option of applying for this vacancy was raised by Coles with 3 of the employees involved in this matter. 5 It is difficult then to see how the same vacancy they could all apply for should, for each of these employees, be a factor that supports the respondent’s case that each employee was offered acceptable alternative employment. If all 3 had applied the best possible outcome was that 2 of these employees would not be Team Managers and one was.

[79] The evidence is also that Mr Labrooy was invited to apply to participate in a 12 month training course which would qualify him to become a Team Manager when such a vacancy presents itself. Mr Labrooy declined to apply for this training. The evidence is that even if he had applied to participate in the training this would not mean automatic acceptance because there is a selection process to be completed. Again other employees involved in this application also had this opportunity.

[80] Obviously there was never any guarantee that Mr Labrooy would be successful in an application to become a Team Manager. There were at least two other applicants for the position if they wanted to apply and given the large number of employees at the Grocery DC one would assume there were other applicants. There is no evidence on which the Commission could form a view as to the likelihood of Mr Labrooy being successful in such an application.

[81] The alternative employment obtained for Mr Labrooy was as a Team Member who did have the potential, if he chose, to apply to possibly be appointed as a Team Manager but with no guarantee this would occur, or when it would occur.

[82] The alternative employment obtained for Mr Labrooy means he will no longer have any significant managerial responsibility and no longer have any supervisory role and he will be classified as a Team Member with no hierarchical seniority. The opportunity to apply for a Team Manager position with no certainty of succeeding does not offset these actual and immediate shortcomings of the alternative employment.

[83] Even if Coles did take advantage of Mr Labrooy’s supervisory experience as his “+1” because of the different hierarchical structure in the Grocery DC this will not mean there is any opportunity for him to be a supervisor short of gaining a Team Manager position.

[84] In my view then these shortcomings of themselves mean the position obtained for Mr Labrooy is not acceptable alternative employment.

Dean DeBari

[85] Mr DeBari was a Team Leader at the Liquor DC. His role was an office based position and his duties primarily involved maintaining the safety systems for the Liquor DC site. Mr DeBari was not required to pick.

[86] The alternative employment offered is as a Team Member in the Grocery DC.

[87] At the time of the hearing he has been working in the Grocery DC in the safety area assisting the Safety Manager doing work which is very similar to that he did at the Liquor DC.

[88] The evidence however is that safety roles at the Grocery DC are elected positions voted upon by other Team Members and whilst it is the respondent’s desire for him to remain in this role this cannot be guaranteed. The evidence is that it is possible then that at the end of the status quo period in place as part of this dispute he will move into a “pick +1” role where safety is his “+1”.

[89] The evidence is however that even with safety as his “+1” it is more likely, than not, that a significant part of his time would be spent picking.

[90] Mr DeBari has been told that there was a vacant Team Manager role at the Grocery DC and that he along with two other Liquor DC Team Leaders would each be automatically shortlisted and given an interview if they were interested. He has declined to apply for this vacancy because he was not interested in a salaried position and wanted to retain the Wednesday rostered day off he currently receives which would not be available to him in the Team Manager role.

[91] The alternative employment obtained in this instance does not provide Mr DeBari with the hierarchical seniority he previously enjoyed at the Liquor DC. The alternative employment in all likelihood will also mean he would have to spend a significant amount of his time picking something he has not done since 2010.

[92] While there is the opportunity for him to apply for a Team Manager role this does not offset the actual and immediate shortcomings of the alternative employment. Further if he was ever successful in obtaining that position the conditions attached to a Team Managers role, mean he would not have his regular rostered day off he enjoyed at the Liquor DC. I accept objectively that this difference is a further shortcoming of even the Team Manager position compared to his job at the Liquor DC.

[93] These shortcomings of themselves mean the position obtained for Mr DeBari is not acceptable alternative employment.

Rodney Lines

[94] Mr Lines was a Team Leader at the Liquor DC. His role was in the workflow area where he had general supervisory responsibilities and carried out a range of administrative and clerical duties. Mr Lines was not required to pick.

[95] Significantly, Mr Lines has moderate to profound hearing loss in his right ear.

[96] Unlike the Liquor DC picking at the Grocery DC is directed through a voice alert system called Vocalect. This system requires Team Members when picking to wear an audio headset.

[97] Mr Lines underwent a functional capacity assessment which concluded that he should not perform the role of store person in the Grocery DC due to the risk his hearing loss posed to him by vehicular traffic hazards in the Grocery DC. The assessment indicated that Mr Lines hearing deficit may improve by the help of a hearing aid or modified headset. Coles have explored the option of a modified headset but this has not proved to be practicable.

[98] Mr Lines has said he is not willing to wear a hearing aid. He has never previously worn a hearing aid. Mr Lines says he was quite capable of doing his job at the Liquor DC, which I accept is correct, without needing to wear a hearing aid.

[99] Coles accepts that Mr Lines is not currently fit to work as a “pick +1” Team Member because of his hearing deficiency which is the alternative employment available for him at the Grocery DC.

[100] Mr Lines had been invited to apply for a vacant Team Manager position and he had in fact applied to participate in the 12 month training course that would prepare him for future vacancies as a Team Manager but has since withdrawn his expression of interest in this course.

[101] Coles had hoped that if he was successful in gaining a promotion as a Team Manager he would not be required to pick in that more senior role and so his hearing deficit would not be a problem.

[102] The alternative employment obtained for Mr Lines is as a Team Member in the Grocery DC.

[103] Coles suggests that it is reasonable to require Mr Lines to commence wearing a hearing aid so he is able to safely undertake picking when this is required. In my view this goes beyond what can reasonably be expected of an employee in terms of making personal adaptations in order to meet the different requirements involved in the alternative employment obtained for them. In any event such a change would only mean Mr Lines could work as a “pick +1” Team Member.

[104] As I have previously found for the other two Team Leaders above, the potential the alternative employment as a Team Member holds to possibly be appointed as a Team Manager does not offset the certain and immediate shortcomings of the alternative employment for these employees. Mr Lines will no longer have any supervisory responsibility and he will lose the hierarchical seniority he previously enjoyed as a Team Leader.

[105] These shortcomings of themselves mean the position obtained for Mr Lines, even were he to agree to wear a hearing aid, is not acceptable alternative employment.

Stevie Liew

[106] Mr Liew was a TML2 at the Liquor DC. Over the period of his employment he has undertaken a wide variety of duties. Over the last few years his duties would predominantly involve a mixture of picking in the security cage, auditing, split case picking, assisting as required in dispatch and on occasions training new employees. I find that the training of new employees was a minor part of Mr Liew’s job.

[107] The alternative employment obtained for him is as a Team Member in the Grocery DC. Coles have guaranteed that following the relocation Mr Liew can if he wishes only work within the liquor section of the Grocery DC. This guarantee has now been made permanent. 6

[108] Mr Liew will have the opportunity to apply for any vacancies which are focused on training but, as with all of his colleagues, there can be no guarantee he will be successful in that. The training duties in his old job however was not a major part of his duties. Comparing the duties between Mr Liew’s old job with those of the alternative employment, whilst they are not identical duties, there is a significant amount of similarity and I find that the duties of the alternative employment does support the conclusion that the alternative employment in Mr Liew’s case is acceptable.

[109] I do not view moving from a TML2 to a Team Member classification as being any significant loss of hierarchical seniority in the specific circumstances of Mr Liew’s case.

[110] In terms of remuneration and conditions Coles has provided a commitment to Mr Liew and others who were TML2’s to continue to apply some particular conditions from the Liquor Agreement to them for the future and to pay them an adjusted remuneration package and also pay them specified lump-sums. These commitments are detailed in the Statement of Agreed Facts and were provided in writing to the employees (e.g. Attachment AF11 of the Statement of Agreed Facts).

[111] Having considered the detail of these commitments made by Coles, whilst I accept the conditions of employment and remuneration Mr Liew will receive at the Grocery DC is not identical to that he received at the Liquor DC, I find that these commitments do appropriately address any significant condition or remuneration disadvantage Mr Liew would have otherwise experienced in relocating to the Grocery DC and these commitments support a conclusion that the alternative employment is acceptable.

[112] My conclusion is that overall the alternative employment obtained by Coles for Mr Liew is acceptable alternative employment.

[113] Consequently in Mr Liew’s case the general severance pay prescription will be varied such that nil severance pay is payable.

Guy Di Perna

[114] Mr Di Perna was a TML2 at the Liquor DC.

[115] From 2009 Mr Di Perna worked at the Liquor DC in the receiving department as a checker and unloader.

[116] His duties involved regularly using a forklift and assisting the Team Leader. Mr Di Perna did pick but this would only be on rare occasions. When the Team Leader was not available he would relieve him and was paid higher duties for those occasions.

[117] Mr Di Perna was also qualified to train new employees although this was a minor part of his duties for his time at the Liquor DC.

[118] The alternative employment obtained for Mr Di Perna is as a Team Member at the Grocery DC.

[119] The “pick +1” approach that applies at the Grocery DC means in effect that whilst all employees may at any time be required to pick where there is a demand for an employee’s “+1” skill or experience they will be utilised on that whenever possible. Employees are rostered to take the fullest advantage of their “+1” for the benefit of Coles.

[120] I accept based on the evidence of Mr Proctor that in the case of Mr Di Perna this means that he will be rostered so that his “+1” of forklift driving is taken advantage of. This is a skill for which there is a high demand in the Grocery DC. Notwithstanding this I also accept that he along with all other employees at the Grocery DC may still at times be required to pick but I accept that this is likely to be very limited in his case.

[121] I do not view moving from a TML2 to a Team Member classification as being any significant loss of hierarchical seniority.

[122] Overall the duties of the alternative employment whilst not identical to those of his old job will not be significantly different. Forklift driving will still continue to be a significant part of his duties. This supports the conclusion that the alternative employment is acceptable.

[123] Coles have made the same commitments to Mr Di Perna as that given to Mr Liew which I have explained above. These commitments do appropriately address any significant condition or remuneration disadvantage Mr Di Perna would have otherwise experienced in relocating to the Grocery DC and these commitments support a conclusion that the alternative employment is acceptable

[124] My conclusion is that overall the alternative employment obtained by Coles for Mr Di Perna is acceptable alternative employment.

[125] Consequently in Mr Di Perna’s case the general severance pay prescription will be varied such that nil severance pay is payable.

Donna Flower

[126] Ms Flower was a TML1 in the Liquor DC. She began work as a casual employee and in 2011 started working full time.

[127] In early 2011 she moved in to the dispatch area and has continued to work there until the relocation. In the dispatch area Ms Flower performed clerical and administrative duties. Ms Flower has not picked in the Liquor DC since she moved in to the dispatch area.

[128] After the relocation was announced Ms Flower was sent for a functional capacity test which revealed she had a shoulder injury. Ms Flower had not previously advised Coles of this injury because it was not affecting her job.

[129] Subsequent medical testing has determined that Ms Flower because of her shoulder injury is not fit for duty as a store person doing picking.

[130] Coles has obtained alternative employment from Ms Flower as a Team Member in the Grocery DC.

[131] The evidence of Mr Proctor, which I accept, is that Ms Flower will be rostered based on her “+1” being a dispatch clerk. Consequently she will be working in a similar position to her old job at the Liquor DC. She may however be required to pick a small proportion of the time.

[132] Because of her shoulder injury Coles have prepared a return to work plan although this has not yet been discussed with Ms Flower because this dispute has not been finalised. The return to work plan will address the limitations of her shoulder injury as would be normal for any employee who is not fully fit to work. I accept that, consistent with their obligations to Ms Flower, Coles would only require her to pick consistent with that return to work plan which will ensure that any picking she is required to do is within the capacity of, and does not, exacerbate her shoulder injury.

[133] Comparing then the old job with the alternative employment in terms of duties the central difference is that the alternative employment may in practice mean Ms Flower is required at times to do some picking which is something she has not done for some time at the Liquor DC. However the majority of her duties in the alternative employment will be the same as in her old job as a dispatch clerk. In the circumstances then I conclude that the duties of the alternative employment are sufficiently comparable to the duties of her old job to support the finding that the alternative employment is acceptable.

[134] For TML1 employees Coles has made commitments regarding the conditions that will be applied to such employees from the Liquor Agreement for the future. These commitments I accept do address any significant potential disadvantage in conditions of employment Ms Flower might have experienced working under the Grocery Agreement.

[135] The base remuneration for Ms Flower is virtually the same at the Grocery DC. 7 Ms Flower as with other TML1 will now be entitled to participate in the productivity and performance-based incentive scheme which was not a viable at the Liquor DC.

[136] My conclusion is that overall the alternative employment obtained by Coles for Ms Flower is acceptable alternative employment.

[137] Consequently in Ms Flower’s case the general severance pay prescription will be varied such that nil severance pay is payable.

Neil Richardson

[138] Mr Richardson commenced employment with Coles in 2006 and 12 months later started working full time.

[139] The alternative employment obtained for Mr Richardson is as a Team Member in the Grocery DC.

[140] For approximately 3 years he was a Team Member Trainer. For his own reasons he then decided to step back to be a Team Member and undertook picking in this role. In early 2011 he was asked to assist in the dispatch area as what he calls an ‘Acting Team Leader’.

[141] During his time as the Acting Team Leader he remained as a TML1 classification however was paid higher duties at Team Leader rates. In 2012 on two occasions he raised the fact that he believed he should be formally appointed to the position of Team Leader however this issue was never resolved.

[142] At the time of relocation Mr Richardson had not done picking for two and a half years.

[143] Mr Richardson had developed some physical limitations over time and a medical examination and a later functional capacity test has identified that he has arthritis and is not fit to work as a store person in a “pick +1” position. Mr Richardson’s condition is not a workers compensatable illness or injury. Consequently Mr Richardson has been stood down without pay and has been advised that Coles will provide him with work in the Grocery DC if he obtains a medical clearance and is fit to work.

[144] There is no reason to believe that the physical limitations of Mr Richardson, given their nature, are in the near future likely to resolve so that he is medically fit to work at the Grocery DC.

[145] The applicant argues that Mr Richardson should have been properly classified whilst he was employed at the Liquor DC for the last two and a half years as a Team Leader whereas Coles argue that he was properly classified as a TML1.

[146] The evidence of Mr Proctor I accept demonstrates that the duties Mr Richardson has been performing as the Acting Team Leader in dispatch for the past two and a half years 8would not equate to the full responsibility prescribed in the definition of Team Leader in the Liquor Agreement.

[147] If I am wrong in that and Mr Richardson was indeed a Team Leader then similarly, as I have found for the other employees who were Team Leaders, I would conclude that Coles have not obtained alternative employment for Mr Richardson that is acceptable.

[148] Whilst in my view Mr Richardson was not a Team Leader I accept that he was working beyond the scope of a TML1.

[149] Considering his additional duties I note that the position descriptions in sub clause 5.2 of Clause 5−Classification Structure says that a TML2 is responsible for the supervision and task allocation of duties of a team of up to 10 employees.

[150] As such the fact that Mr Richardson was supervising employees does not necessarily mean that he should have been a Team Leader but rather possibly that he should have been a TML2. However there is not detailed evidence as to the number of persons that Mr Richardson was supervising.

[151] In any event the Commission’s role in this application is not to make a decision as to whether the Liquor Agreement was being properly applied to the work that Mr Richardson was doing and not to decide what classification he should have been remunerated at.

[152] The question rather is what was Mr Richardson’s job that is to be compared to the alternative employment to determine whether it is acceptable?

[153] Coles have not suggested with any specificity they have a role in the Grocery DC for Mr Richardson that generally aligns with the extended duties he has been carrying out for the last two and a half years as Acting Team Leader in dispatch. A Team Member role would not involve comparable duties to his old job.

[154] The fact that Mr Richardson has been declared unfit to work at the Grocery DC when the same physical limitations on which this is based did not constrain him working for the last two and a half years at the Liquor DC highlights, in my view, that the alternative employment Coles notionally has obtained for Mr Richardson bears little relationship to the duties of the job he had been doing at the Liquor DC.

[155] The particular duties this employee has been dong allowed him to continue in employment notwithstanding his physical limitations and the expectation of both parties was that he would continue working under this arrangement.

[156] Considering the duties that Mr Richardson has been doing for the last two and a half yearswhich he would have continued to carry out other than for the relocation my conclusion is that the alternative employment Coles has obtained is not acceptable.

Paul Wallwork

[157] Mr Wallwork was first employed by Coles in 1995. In 2005 he was working in the dispatch area of the Liquor DC.

[158] In 2007 Mr Wallwork injured his back at work. This injury was the subject of a worker’s compensation claim which was closed in 2009. Mr Wallwork from this time onwards continued to work for Coles in compliance with some physical restrictions which he continued to have because of this injury. 9

[159] In 2010 Coles asked him to be the Team Leader in dispatch, a role he with some reluctance agreed to do.

[160] After some time he wanted to change back to being a team member doing picking because he was unhappy in the Team Leader role but he was told he could not because of his previous injury.

[161] Around November 2010 he was replaced in the Team Leader role and returned to be a TML1 in the dispatch area doing duties which allowed him to work within the physical restrictions he had.

[162] In August of 2013 and again in September of 2013 Mr Wallwork attended medical examinations which identified there were significant limitations on Mr Wallwork’s physical capacities. Considering the duties required to be performed at the Grocery DC Coles concluded there was no possibility for them to provide him with a safe working environment. Mr Wallwork’s limitations were discussed between Coles’ injury management advisors and consideration was given to alternative roles however given the extent of his physical limitations no alternative role was considered safe.

[163] Mr Wallwork was advised that he would not be offered a position at the Grocery DC due to his inability to safely perform any role there and he was stood down. 10

[164] There is no reason to believe that the physical limitations of Mr Wallwork that have been evident since 2009 and have since deteriorated are in the near future likely to resolve so that he is medically fit to work at the Grocery DC.

[165] Immediately prior to the relocation Mr Wallwork was employed as a TML1. The alternative employment Coles say they have obtained for Mr Wallwork is as a Team Member in the Grocery DC. Coles have not with any specificity explained what duties Mr Wallwork would be required to do however submit that this alternative employment is available to him if and when he obtains a full medical clearance.

[166] The fact that Mr Wallwork has been declared unfit to work at the Grocery DC in any position when the same physical limitations on which this is based did not constrain him working at the Liquor DC highlights that the alternative employment Coles notionally has obtained for him is significantly different, in terms of duties, to the job he had been doing at the Liquor DC since 2010.

[167] Had Coles not decided to relocate the Liquor DC there is no reason to believe that Mr Wallwork would not have continued to carry out the duties he had been undertaking satisfactorily at the Liquor DC since November 2010.

[168] I would take a different view if this was a case where an employee had been unfit to carry out their normal duties and this has temporarily been accommodated by the employer.

[169] My conclusion is that the alternative employment Coles has obtained for Mr Wallwork is not acceptable.

Khim Lee

[170] Mr Lee commenced employment with Coles in 2002 and began working full time for Coles between 2004 and 2005.

[171] From 2010 Mr Lee mainly worked bulk picking. In late 2011 Mr Lee expressed an interest in working in the inventory area. He commenced training under the Team Leader of the inventory area.

[172] When the Team Leader inventory took six weeks leave in around April 2012 he took over the role and was paid higher duties at the Team Leader rate for this period.

[173] Mr Lee’s evidence is that when the Team Leader inventory, Pauline, subsequently retired on Friday, 23 August 2013 he replaced her as Team Leader. I note that the transfer date was the following Monday, 26 August 2013 which was when Mr Lee along with others from the Liquor DC moved to the Grocery DC.

[174] The applicant argues that Mr Lee should have been properly classified whilst being trained as the Team Leader inventory at the Liquor DC (and thereafter) as a Team Leader. Coles argue that he was never appointed as a Team Leader although he acted in that role at times and was accordingly paid higher duties and remained properly classified as a TML1.

[175] Whilst in 2011, prior to deciding to transfer the Liquor DC to the Grocery DC, it may well have been the intention of Coles that Mr Lee replace Pauline as the Team Leader inventory however the facts are that Pauline retired at the same time the transfer occurred.

[176] The transfer to the Grocery DC effectively displaced Coles’ original intention that Mr Lee replace Pauline as Team Leader. At the transfer date Mr Lee was not a Team Leader but rather a TML1.

[177] The evidence is that the alternative employment that has been obtained for Mr Lee is as a Team Member at the Grocery DC and Coles’ intention is that he would be rostered on the basis that his experience in inventory is his “+1”. I also accept that it is unlikely that in the circumstances Mr Lee will be required to pick but it is possible as it is for all employees under the “pick +1” arrangement at the Grocery DC. 11

[178] In the circumstances I am satisfied that the duties of the alternative employment that Coles have obtained for Mr Lee, whilst not identical, are generally comparable to those he was previously doing at the Liquor DC. As explained above for other TML1 employees I accept the commitments by Coles regarding conditions of employment to be carried over from the Liquor Agreement supports the view that the alternative employment is acceptable. My conclusion is that Coles have obtained acceptable alternative employment for Mr Lee.

[179] Consequently in Mr Lee’s case the general severance pay prescription will be varied such that nil severance pay is payable.

COMMISSIONER

Appearances:

R Hooker of Counsel for the applicant

R Allen, solicitor for the respondent

Hearing details:

2013.

Perth

December 6, 9

1 Applicant’s outline of submissions at paragraph 18(b)

2 Statement of Agreed Facts, Attachments AF10 and AF11

3 AMCOR Ltd v CFMEU (2005) 222 CLR 241

4 Baywood Products Pty Ltd v Mr Inall [2010] FWC 9303 at [46]

5 Exhibit R5 at paragraph 47

6 Exhibit R5 at paragraph 55 and Transcript at PN1167

7 Statement of Agreed Facts, Attachment AF9, page 3

8 Exhibit A7 at paragraphs 19 and 22

9 Exhibit A5 at paragraph 10

10 Exhibit R3 at paragraphs 31 and 32

11 Transcript at PN1090

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