Transport Workers' Union of Australia v Toll Holdings Pty Limited
[2024] FWC 2738
•2 OCTOBER 2024
| [2024] FWC 2738 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Transport Workers’ Union of Australia
v
Toll Holdings Pty Limited
(C2024/4364)
| DEPUTY PRESIDENT EASTON | SYDNEY, 2 OCTOBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – redundancy – suitable alternative employment – alternative position at a different location – longer commuting time – no material change to work performed – no loss of accruals or entitlements – red circling of wages – disruption to family life – alternative positions are suitable alternative employment – determination made – interaction with NES provisions.
A dispute has arisen in relation to the application of the Toll – TWU Enterprise Agreement 2023-2026. The jobs of Mr Blagojse (Billy) Stojanovski and Mr Riste (Chris) Stojanovski were made redundant on 30 June 2024 when Toll’s contract with Opal ANZ ceased. Toll offered the Stojanovskis alternative employment based at different premises. There is a dispute about whether the alternative positions are suitable alternative employment that would disentitle the employees to higher redundancy benefits under the agreement. The Fair Work Commission has power to determine the dispute under the dispute resolution procedure of the Agreement and sections 739 and 595 of the Fair Work Act 2009 (Cth).
Billy and Chris are brothers, they live at the same address and their roles and duties are materially identical. Billy has worked as a full-time driver for Toll since October 2011. Chris started two months later as a full-time driver in December 2011.
The Stojanovskis both worked at Toll’s site in Botany. From the Botany site Toll serviced a contract with Opal ANZ to transport paper. The Stojanovskis were told on 27 March 2024 that Toll’s contract with Opal ANZ was finishing on 30 June 2024.
On 11 June 2024 the Stojanovskis were given notice that they could commence working at Toll’s Chullora site as drivers. Toll services a contract with BlueScope from the Chullora site that involves large-scale distribution of steel products into the Sydney metropolitan region. Toll said that the role and duties undertaken by the Stojanovskis at Chullora are materially identical for the purposes of this dispute.
It will take the Stojanovskis longer to commute to and from Chullora and there is a question mark of sorts about whether the Stojanovskis will be moved to a third site within 6-12 months. Further, the rosters at the two sites are slightly different: ordinary hours commence at 6:00am at Botany and 5:00am at Chullora.
The Toll – TWU Enterprise Agreement 2023-2026 (the Agreement) provides for very generous redundancy payments but contains a carveout where Toll “obtains … suitable alternative employment” for the redundant employee. The dispute is about whether Toll has obtained suitable alternative employment for the Stojanovskis.
The evidence
The parties provided maps, calculations and revised calculations about commuting times. It is not necessary to describe this evidence in fine detail. Toll estimated that commuting to and from Botany takes approximately 34 minutes and commuting to and from Chullora takes approximately 66-72 minutes. The Stojanovskis estimated that commuting to and from Botany takes them approximately 27 minutes and commuting to and from Chullora would take them approximately 60 minutes.
I am satisfied for present purposes that the additional commuting time to Chullora is approximately 35 minutes per day, which is roughly double the commuting time to Botany.
Mr Jeff Mabey is the Business Operations Manager for Toll. Mr Mabey made two witness statements and was not required for cross-examination. Mr Mabey manages Toll’s Botany site and Ingleburn site. In his evidence Mr Mabey described the work at Botany, the loss of the Opal ANZ Contract, the work undertaken by the Stojanovskis and the process by which the Stojanovskis’ positions were made redundant. Mr Mabey considered the Stojanovskis to be good workers and he wants them to continue to drive with Toll.
Mr Mabey looked for alternative positions for the Stojanovskis and described the Chullora jobs as follows:
“I then found available work at the Chullora site … I thought it was a great match as it was work which was consistent with the [Heavy Combination] licence which they both possessed, was work which was equivalent in my view to the work that they were performing and was also close by.
I spoke with Stephen Smith. He is an Operations Manager who oversees a team like mine who do the same type of work but delivering steel. He initially said he only had one role available. However, at some stage, he said another role and become available and we could move both employees across.”
Mr Stephen Smith has been the Operations Manager for Toll for the last eight years. Mr Smith gave evidence and was cross-examined. In his evidence in chief Mr Smith described the work performed by the Stojanovskis at Botany and at Chullora in detail. It is not necessary in this decision to recite the details of that evidence.
Mr Smith said that if the Stojanovskis were to move to Chullora they could be required to drive to Newcastle or Port Kembla from time to time. Mr Smith reviewed Toll’s records for the last three months and found that on eight occasions drivers had driven to Port Kembla and on six occasions drivers had driven to Newcastle. Port Kembla is approximately 90 minutes from Chullora and drivers might also do a local Sydney run on the same day as a Port Kembla run. Mr Smith said that subcontractors would normally do the Newcastle run, but that if an employee driver did the run they would only do the one load in the day.
Mr Smith also gave evidence of the consultation process by which Toll discussed the redundancies with the Stojanovskis. There is no suggestion that the consultation process was deficient.
Mr Smith’s evidence under cross-examination included:
(a)there are three sites from which Toll services the contract with BlueScope: Port Kembla, Erskine Park and Chullora;
(b)Port Kembla is the biggest site. Five managers are based at Port Kembla, one manager is responsible for the other two sites;
(c)only two employees are based at the Chullora site. If the Stojanovskis agreed to move they would be the two employees at the Chullora site. Other contractor drivers operate out of the Chullora site;
(d)there are no direct employees operating out of the Erskine Park site;
(e)Toll is contemplating purchasing electric trucks to service the BlueScope contract. Mr Smith does not know if a definite decision has been made to purchase any electric vehicles but does know that other managers are investigating whether the electric vehicles could be used;
(f)Toll has already decided that if electric vehicles are purchased then they will operate out of, and be charged from, Toll’s site at Arndell Park. If this happens then the Stojanovskis will be relocated to Arndell Park; and
(g)Mr Smith did not tell Mr Mabey that the positions at Chullora would only last for six months. Mr Smith did specifically raise with Mr Mabey the possibility of purchasing electric vehicles and relocating the Stojanovskis’ positions to Arndell Park. Mr Smith thought it was important that the Stojanovskis were fully aware of the possibility of a move to Arndell Park.
In his witness statement Billy Stojanovski described his work out of the Botany site, the process by which he was told that his position at Botany would he made redundant and the process through which alternative positions were discussed.
In this regard Billy said that Mr Mabey “hinted” at some kind of steel job in early May 2024, but was not specific. Mr Mabey also invited Billy to consider a forklift driver position but Billy had no interest in that role.
On 5 June 2024 Billy said he met with Mr Mabey to discuss a position at Chullora:
“It was on 5 June 2024 where I received a text from Mr Mabey advising of a further consultation meeting the very next day… All of this was really short notice. I did manage to attend and made notes on the day. It was during this meeting that Mr Mabey first brought up the idea of what a ‘steel job’ was. I knew a little bit about how steel is delivered, so I raised some concerns. My thoughts were that the chains and the dog were very heavy and that the job with paper was an intensive job enough. I also said that I had heard rumours that the site will move to Erskine Park. Mr Mabey said that this would probably be happening in the next 6 to 12 months. I made it clear that the job did not seem suitable for me, I also did not really have any information aside from the fact that I would be working with steel. My impression was that all of my concerns about the suitability of this job were brushed off and not considered…”
In his statement Billy described his home life and family arrangements including:
(a)he lives 10-15 minutes away from the Botany yard;
(b)it gets out of bed at around 5:20am, leaves home at 5:45am and clocks on at Botany at 6:00am;
(c)normal hours of work were from 6:00am to 2:30-3:30pm or later in busier times;
(d)Billy thought the Chullora position “was not the slightest bit suitable” for him;
(e)he thinks driving with a flatbed trailer would be very different to the Tautline tractor he is used to;
(f)he is concerned that he will have to use dogs and chains, which he describes as “extra heavy and requires a lot more moving around and securing”;
(g)Billy is concerned about how working from Chullora would affect his family:
“All of this would reduce the amount of time I get to spend with my family. My parents are getting quite old and I do a lot of the domestic activities for them. I mow the lawns, cook them dinner, clean the house, all sorts of things. My mum has a thyroid condition that has seen her go through a few procedures and my dad is almost deaf, which complicates looking after him. This change would really cut into the time I am able to spend making their lives easier. I have a five year old niece who I care about deeply, if I do not get to see her regularly she tends to get unsettled and ask where I am. I believe this would be made worse if I am getting up a lot earlier and going to bed earlier, because I would have to prioritise this job over my family.”
Chris’ evidence in his witness statement was very similar to Billy’s statement – which is not surprising in this matter because their circumstances are almost identical. Chris wakes up at the same time as Billy. Chris also leaves home at 5:45am for a 6:00am start but drives his own car to work because he and Billy often finish work at different times.
Chris expressed the same concern about using a flatbed trailer and using heavy dogs and chains:
“Based on my interpretation of annexure SS-2 of Mr Smith’s statement, I would be anchoring and fixing for a far longer time, the weight of the chains when compared to the straps would be far more demanding and I would imagine I would do a lot more manual handling, this is excluding any tarp work which I think would be very tough on steel truck beds.”
Chris said he thinks he will have to pay road tolls to get to work at Chullora, which he calculates to be $65.25/week or $3132 per year.
Chris described the effect on his family life of moving to Chullora:
“I also have a niece who is five years of age. I consider my relationship with my niece to be very significant. I try to spend as much time with her during these critical years of growing up, however with me getting up a lot earlier and going to bed a lot earlier, I fear that I would not be able to spend as much time with her.”
Chris’ evidence in cross examination included the following:
(a)he worked on average a 10-12 hour day at Botany;
(b)if he were to move to the Chullora site then he would have the opportunity to earn more money through working more overtime than he was working at Botany;
(c)when he worked at Botany he was usually home by 4:15pm each day;
(d)he is likely to arrive home at a similar time if he moved to Chullora, even on his estimated worst-case scenario in relation to travel time;
(e)if he moved to Chullora he would still have the same available family time between 4:15pm and 8:00pm each day;
(f)he would need to get out of bed one hour earlier because of the 5:00am start at Chullora, which would not interfere with his family time. However he would need to go to bed earlier in the evenings because of the earlier start;
(g)on his estimate of travel times his worst-case scenario is that he will have to travel an additional 48 minutes per day and his best-case scenario is an additional 12 minutes per day; and
(h)he estimated that he would spend an additional 192 hours per year commuting was based on his worst-case scenario estimate occurring on every workday over a year.
Billy was in the court room when Chris gave evidence. When Billy was cross-examined his evidence did not materially deviate from his brother’s evidence.
The terms of the Agreement
Clause 26 of the Agreement includes the following provisions:
“26. Redundancy
(a) A redundancy occurs in a circumstance where Toll decides that it no longer requires the position that a Transport Worker has been doing to be done by anyone and that decision leads to the termination of the Transport Worker’s employment with Toll.
(b) Toll will use redundancy as a last resort. This will include Toll taking all reasonable steps at the relevant workplace to reduce the number of Outside Hires and casual Transport Workers before implementing any redundancies.
(c) In a redundancy situation Toll will:(i) undertake consultation in accordance with clause 14;
(ii) explore, in consultation with the affected Transport Worker(s) and the Union,
opportunities for suitable alternative employment for the affected Transport Worker(s);
(iii) provide such re-training or outplacement support to Transport Workers as may be reasonable in the circumstances; and
(iv) provide Transport Workers with reasonable paid time off to seek alternative employment.…
(g) A Transport Worker will not be entitled to receive a severance payment if Toll obtains for them suitable alternative employment. Such suitable alternative employment can include employment with an employer other than Toll but only in circumstances where the new employer recognises all previous service of the Transport Worker with Toll and all employee entitlements are transferred with the Transport Worker to the new employer.”
Toll’s submissions
Toll submitted that the following context informs the meaning of the phrase “suitable alternative employment” in clause 26(g) of the Agreement;
(a)the obligation upon the employer to provide retraining that is reasonable in the circumstances where an employee is redeployed, which indicates that even if reasonable training is required the employer will have provided suitable alternative employment;
(b)the Agreement applies to all of Toll’s sites and alternative employment that is covered by the same instrument must be prima facie “suitable”;
(c)Toll operates its business out of a huge number of different sites across the country. It would significantly undercut Toll’s capacity to offer alternative employment if the offer is not acceptable only because of additional travel time;
(d)the objects of the Agreement refer to promoting job security, enhancing job security and the sustainability of Toll’s operations and the like. These objects support a broader application of the term ‘suitable alternative employment’ that promotes redeployment within Toll and necessary retraining.
Toll submitted that the following matters weigh heavily in favour of the finding that the role at Chullora is suitable alternative employment:
(a)the Stojanovskis remain employed with the same employer;
(b)the same Agreement applies to the employment and the Stojanovskis will remain at the same pay level;
(c)ordinary hours will be worked on the same days;
(d)the Stojanovskis will have continuity of service and recognition of their accrued entitlements;
(e)job title and seniority are the same;
(f)there is similar overtime available; and
(g)the licence qualifications and the material specifics of the vehicle they drive remain the same.
Toll referred to census data to suggest that the average commute for residents in greater Sydney is 16.5km per day, taking 71 minutes per day.
Toll argued that the Stojanovskis’ argument in relation to additional toll charges (see below) must be rejected as irrelevant. Toll said that there is “almost no reason for the Stojanovskis to take the $13.05 toll road route from their home to Chullora and back each day” and that there are three viable routes that do not incur a toll.
Toll submitted that the longer commuting time to Chullora was nonetheless reasonable.
Importantly, Toll is a logistics business that provides transport services under a range of contracts. As contractual arrangements change employees can move around regularly. Toll relied upon the finding of Deputy President Sams in Spotless Services Australia Ltd [2013] FWC 4484 that a commuting time of 50 minutes did not make the alternative employment unacceptable. Deputy President Dean came to the same conclusion in SG Maintenance Pty Ltd v Robert Lord[2020] FWC 5894, as did Commissioner Booth in Lake Mona Pty Ltd T/A Cambridge Street Child Care Centre [2015] FWC 4098 (regarding 15 to 45 minutes driving time per day) as did Commissioner Williams in Uniting Church Homes (t/a Juniper) v Sandhu [2022] FWC 2137 (regarding an additional 30 minutes travelling time).
Toll said that even though the hourly rate at Chullora was slightly lower than at Botany, the Stojanovskis’ higher hourly rate will be maintained until the new hourly rate catches up.
In relation to ‘red circling’ the Stojanovskis’ pay rate, Toll relied on the following decisions in which it was found that the alternative employment was suitable or acceptable:
(a)Australian College of Optometry v Ng[2023] FWC 2100 where a 13% reduction in pay was delayed by a period of six months due to a grandfathering arrangement;
(b)Re National Union of Workers (2007) 168 IR 143 where the reduction in wages was up to $3.37 per hour (in 2009); and
(c)Trustee for Beckworth Family Trust (T/as Door World) [2022] FWC 2830 where there was a 30% reduction in pay but a future prospect of increased remuneration.
Toll also notes that the hourly rate at Botany is approximately 1.55% higher than the rate at Chullora and that further wage increases are scheduled in the Agreement which means that the red circling will conclude on 1 July 2025.
In fact Toll submitted that the only material difference between the two depots is the type of product being transported: Botany work involves paper and Chullora work involves steel products.
Job security is perhaps greater at Chullora because Toll’s contract with BlueScope has just been renewed for a further seven years.
In relation to the Stojanovskis’ claims about family circumstances, Toll noted that both employees “agree that they have worked a lot of overtime, and the opportunity to work overtime appears to remain important to them.”
The Stojanovskis submissions
The Stojanovskis submitted that:
(a)Toll has not made out its onus to establish that the alternative employment was adequate;
(b)it is appropriate to have regard to the non-exhaustive indicia formulated in the authorities dealing with applications under s.120 of the Act; and
(c)several indicia render the role at Chullora unsuitable for the purposes of clause 26(g) of the Agreement: (1) wages, (2) roster, travel time and tolls, (3) the nature of the work and (4) family circumstances.
The Stojanovskis submitted that Toll misconstrued the entitlement to wages under the local agreements that apply at each site. The Stojanovskis argued that the ongoing hourly rate at Botany was $38.90 after 1 July 2024, compared to $37.40 from 1 July 2024 under the Chullora local agreement. Although Toll said the Stojanovskis’ hourly rates will be grandfathered, “their wages would stagnate” until the Chullora rates caught up.
The Stojanovskis claimed that there was genuine uncertainty in relation to the rostering arrangements, in particular whether the Stojanovskis were required to start at 5:00am or at 5:30am. It is clear that either way the Stojanovskis will be required to start work earlier.
There is no disagreement about the additional distance the Stojanovskis will have to travel to Chullora, however the Stojanovskis dispute Toll’s calculations of the difference in time and also the additional road tolls incurred if the Stojanovskis were to travel to Chullora via toll routes.
The Stojanovskis referred to the Full Bench’s finding in DL Employment Pty Ltd v Australian Manufacturing Workers’ Union[2014] FWCFB 7946 at [73] that an additional 45 minutes each way was a repudiation of the employment contract.
The additional travel time also needs to be considered in the context of being required to start one hour earlier. The earlier start time was said to exacerbate the “disutility” of the additional travel time.
It is also said to be a possibility that employees based at the Chullora site could be moved to Erskine Park within the next 6-12 months, which would add an extra 60 minutes of travel time each way. This potential change amplifies the unsuitability of the position at Chullora because the job security at Chullora could be at risk.
The Stojanovskis submitted that the differences in the work performed would require significant and/or substantial adjustment to the Stojanovskis’ “work and lifestyle”. I take the reference to lifestyle to be a reference to the possibility that the Stojanovskis would be required to deliver steel to or from Newcastle, Port Kembla and perhaps Wollongong. The Stojanovskis said “it is unclear whether such trips would be completed such that they are back at the depot, thereby permitting them to depart from the Chullora site at their scheduled finish time.”
Principles
Drawing from earlier cases applying s.120 of the Act, the following general principles apply:
(a)the acceptability of the alternative employment is generally regarded to be an objective question to be answered by reference to objective factors (see Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 (Hot Tuna), noting the observations in Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189 at [48]-[51], (2015) 235 FCR 441 at 451-2 (ACC);
(b)the fact that an employee accepts or does not accept the alternative employment is not necessarily determinative of whether the employment was ‘acceptable’ (see Get Started Pty Ltd v Matthew Lee[2018] FWC 3295 at [28]);
(c)there is a prima facie right to severance pay if an employee is dismissed because of redundancy as a national employment standard (see Berkeley Challenge Pty Ltd v United Voice [2020] FACFC 113 at [14], (2020) 297 IR 397 (Berkeley);
(d)the origin of redundancy exemption provisions is the decision of the Full Bench of the Conciliation and Arbitration Commission in Termination, Change and Redundancy Case (1984) 8 IR 34 to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy (see ACC at [12] citing FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 at [9]ff, (2015) 232 FCR 1 at 4, (2015) 250 IR 476 at 479);
(e)relevant factors might include (see ACC at [52]-[54]):
i.whether the work is of a like nature;
ii.whether the location of the employment being offered is not unreasonably distant;
iii.whether the pay arrangements comply with award requirements;
iv.the hours of work;
v.seniority;
vi.fringe benefits;
vii.workload and speed; and
viii.job security;
(f)in determining whether the employment is acceptable the Commission must consider the particular circumstances of the employee(s) (see ACC at [54]);
(g)alternative employment might be acceptable even if its terms are less advantageous (see Application by Ikon Administration Pty Ltd [2019] FWC 5269 at [22] citing Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai[2013] FWC 1327 at [9] and NUW v Tontine Fibres [2007] AIRCFB 101);
(h)on its face the expression “other acceptable employment” is not confined to employment with another employer (Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 at [49], (2020) 296 IR 425 at 435);
redundancy exemption provisions are not generally concerned with the reasonableness of the employer’s conduct, but only with the acceptability of the employment obtained by the employer. The reasonableness of the employer’s conduct might be relevant to the exercise of any discretion the Commission might have in providing relief (see ACC at [60]);
(j)for an employer to avail itself of a redundancy exemption provision, the other acceptable employment must generally be ‘obtained’ and offered to the employee while the employee is still employed (Application by Electricity Wizard Pty Ltd T/A Electricity Wizard Pty Ltd [2018] FWC 4556 at [24]);
(k)information and even misinformation provided to employees is irrelevant to the threshold question of whether the alternative employment is acceptable, but might be relevant to the exercise of any discretion the Commission might have in providing relief (see ACC at [64]); and
(l)the employee’s willingness to meaningfully engage with the employer’s various offers of reemployment might be relevant to the exercise of any discretion the Commission might have in providing relief (see Application by Spotless Services Australia Limited [2016] FWC 4505 at [90]).
Consideration
The starting point for consideration is the ordinary meaning of the text of the Agreement in its context. The first thing to note about clause 26 is the obvious emphasis on redundancy being a last resort. Toll is positively required to take all reasonable steps to reduce or avoid redundancies: Toll must take steps to reduce Outside Hires and casuals before implementing redundancies, Toll must undertake consultation, explore opportunities for suitable alternative employment and provide retraining when reasonable.
One can readily discern from the text of the agreement that there is a shared or agreed priority given to the avoidance of redundancies. Whether a position is a “suitable alternative employment” must be assessed in this context. Recognising that an alternative position might be on terms less favourable than the original position, and/or might require retraining, and recognising that Toll’s business is spread out across many locations, the “suitability” of particular alternative positions should not be assessed harshly. As SDP Richards opined in Datamars (Australia) Pty Ltd T/A Datamars [2015] FWC 1269 at [25]:
“An acceptable alternative role does not mean the same employment, clearly. But equally, on an objective assessment, the position must be within a range of tolerance as well.”
Severance payments provide compensation to redundant employees for a range of matters including compensation for non-transferable ‘credits’ that have been built up, accrued benefits like sick leave and long-service leave, loss of seniority and so on. Where the employer has obtained alternative employment, particularly employment wherein many of these losses would not be suffered, the range of tolerance should be broader rather than narrower.
If the Stojanovskis accepted positions at Chullora their accrued entitlements would continue. The roles at Chullora are substantially the same. The positions and Botany and Chullora are both HC (Heavy Combination) truck driver roles. The day-to-day workflow is essentially the same insofar as both Stojanovskis will be able to drive to work in their own vehicles and leave the workplace at a similar time. The availability of overtime seems comparable – in fact there seems to be more overtime available at Chullora than was available at Botany. These factors strongly point towards the alternative positions being suitable.
I’m not persuaded that the difference in loads and type of trailer are material. The Stojanovskis are concerned about using a dog and chain that could weigh up to 14kg, however there was no evidence of any physical limitations for either applicant that would place them at a particular risk of injury.
The most concerning factor is the additional commuting time. Although doubling the commute time sounds dramatic, the Stojanovskis live reasonably close to Botany so the starting base is relatively low. Overall the estimated total commute time of 60-70 minutes to work at Chullora is still within the bounds of reasonable, at least by Sydney standards.
This finding is consistent with the earlier cases relied upon by Toll (see [31] above and the references to Spotless Services Australia Ltd [2013] FWC 4484, SG Maintenance Pty Ltd v Robert Lord[2020] FWC 5894, Lake Mona Pty Ltd T/A Cambridge Street Child Care Centre [2015] FWC 4098 and Uniting Church Homes (t/a Juniper) v Sandhu [2022] FWC 2137). As the above principles make clear, there are a range of factors to be considered in each individual case and so one must be cautious when looking at other decisions and comparing how single factors were applied.
The Full Bench’s finding in DL Employment Pty Ltd v Australian Manufacturing Workers’ Union[2014] FWCFB 7946 at [73] (DL Employment) that a change in work location requiring an additional 45 minutes travel was a repudiation of the contract of employment does not take the present matter any further. If the change in location is repudiatory then the Stojanovskis have the option to accept the repudiation and bring the employment to an end. The entitlement to redundancy under the Agreement is not affected by the Stojanovskis electing to accept the repudiation or not. I note that the relevant enterprise agreement in the DL Employment case did not have a provision equivalent to clause 26(g) that modifies the obligation to pay severance payments (see DL Employment at [79]).
The rates of pay at the Chullora site are slightly lower than the rates at the Botany site. As such the Stojanovskis’ wages will be red circled if they accept the position at Chullora. Toll argued that because the difference is only small the red circling will only apply until July 2025. This is a factor that points against the alternative positions being suitable, however, in the present circumstances the small wage differential means it is not a strong factor.
There is a potential uncertainty about the security of the employment at Chullora. During the consultation process Mr Mabey, to his credit, raised the possibility that the Stojanovskis could be relocated from Chullora in the future if Toll decides to purchase electric vehicles to service the Bluescope contract. On the evidence there is more than a hypothetical chance that these electric vehicles might be purchased. Mr Smith said that another manager was actively exploring the capability of these vehicles and he was clear in his evidence that if the vehicles are purchased then the Stojanovskis will be deployed to drive them based out of a different location.
If the Stojanovskis accept the positions at Chullora they will still be covered by the Agreement and have the security of the provisions of clause 26. If in fact their positions at Chullora are redundant in the future, and they are offered alternative positions at Ingleburn, the positions at Ingleburn may or may not constitute suitable alternative employment. I accept that there is a degree of unease about the future in Chullora and that this unease is a factor that points against the Chullora positions being suitable alternative positions.
Much evidence was led about the impact on the Stojanovskis’ family time and lifestyle. These factors are not insignificant. The earlier start time at Chullora would mean that the Stojanovskis would have to wake up and leave home earlier than before. This does not have any significant impact on the family activities referred to in the Stojanovskis’ evidence. It could mean that the Stojanovskis will have to go to bed earlier in the evening because of the earlier wake-up time. This does impair the opportunity that the Stojanovskis have to spend time with their immediate and extended family in the evenings. In their evidence the Stojanovskis refer to their aging parents and their niece. Overall I am not convinced that these changes to the family lifestyle render the positions at Chullora to be unsuitable.
Similarly I do not think that the possibility that the Stojanovskis might have to do runs to Wollongong or Newcastle are problematic. The evidence was that such runs are comfortably completed within the workday. Given that the Stojanovskis would still start and finish their workday at the Chullora site, this does not seem to be a difference that is detrimental, or even potentially detrimental to the Stojanovskis.
For these reasons I am satisfied that the alternative positions offered to the Stojanovskis at the Chullora site are suitable alternative employment for each employee. Some factors point against the positions being suitable however those factors are outweighed by the emphasis placed on avoiding redundancies altogether in the Agreement and, more importantly, the material similarities in the work performed at Chullora and the conditions under which the work would be performed.
As a result the Stojanovskis would not be entitled to the redundancy severance payments under the Agreement if their employment is terminated because their jobs at the Botany site have been made redundant.
Interaction between the Agreement and the NES
One further matter arose in the course of the hearing, being the interaction between clause 26 of the Agreement and s.120 of the Act. After the hearing the parties provided very helpful supplementary written submissions.
Ultimately there was no disagreement between the parties that the terms of the Agreement operate in parallel with the NES (see MUA v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737 at [23]-[25], (2014) 245 IR 287 at 292).
Consequentially, if the employment of one or both of the Stojanovskis end because their position at the Botany site was made redundant they would be entitled to be paid severance payments in accordance with the NES scale in s.119(2) of the Act even though the higher severance payments under clause 26 would not be payable. However, the amount of redundancy pay under s.119 could be reduced, either wholly or partially, upon application by Toll to the Commission under s.120.
DEPUTY PRESIDENT
Appearances:
J Martin of Counsel instructed by B Ryan and S Nasser for the Applicant
M Mead for the Respondent
Hearing details:
2024.
Sydney
August 7.
Final written submissions:
Respondent: 13 August 2024
Applicant: 13 August 2024
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