Triforce Staffing Pty Ltd T/A Triforce v David Hill
[2018] FWC 7393
•19 DECEMBER 2018
| [2018] FWC 7393 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Triforce Staffing Pty Ltd T/A Triforce
v
David Hill; Casey Freeman
(C2018/4024; C2018/4025)
DEPUTY PRESIDENT GOSTENCNIK | SYDNEY, 19 DECEMBER 2018 |
Application to vary redundancy pay; whether obtained other acceptable employment; application dismissed.
[1] Triforce Staffing Pty Ltd T/A Triforce (Applicant) applied under s.120 of the Fair Work Act 2009 (Act) seeking to reduce the redundancy pay entitlement of two of its former employees, Mr David Hill and Mr Casey Freeman (Respondents). The Applicant is seeking for the varied obligation to be nil on the ground that it obtained other acceptable employment for the Respondents. A hearing of the application was held on 18 September 2018.
[2] The Applicant operates a business in the electrical contracting industry which has been involved in the construction of the National Broadband Network (NBN) nationally for some years, but has recently been met with operational difficulties requiring the Applicant to terminate the employment of its workforce in Queensland. 1
[3] The Respondents were two of six employees whose employment was terminated on redundancy grounds. The Respondents commenced full time employment with the Applicant on 1 July 2017, 2 in the roles of Telecommunications Technician and Supervisor, Queensland respectively until their redundancies were effected on 1 August 2018.3
[4] Section 120 of the Act provides as follows:
“120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee…
(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”
[5] On 3 July 2018, Mr Mathew Wegener of the Applicant contacted Mr Steven Wilson, Director of Communications Connect, to discuss the employees who were to be made redundant, whether Communications Connect required qualified staff, and if so, to organise interviews for the six redundant employees. 4
[6] On 5 July 2018, Mr Nathan Smith of the Applicant contacted Mr Wayne Pelser, Queensland State Manager of Communications Connect, regarding the six employees who were to be made redundant. Subsequently, Mr Pelser responded to Mr Smith stating he was interested in meeting with the six employees and provided various interview times which Mr Smith was to then nominate the six employees for based on their availability. 5
[7] On 6 July 2018, Mr Smith wrote to Mr Freeman to advise that the six employees were to be stood down, with pay, due to a lack of available works in Mima Queensland. Mr Freeman was advised that the Applicant had the opportunity to move the six employees into ‘wideband works’ with Communications Connect. Further, Mr Smith advised that Communications Connect were looking to take on all six employees and provided Mr Pelser’s contact details as well as the interview times. 6
[8] On 10 July 2018, Mr Freeman confirmed with Mr Smith by email that he had spoken to Mr Pelser and had arranged a meeting with him. 7 The interviews for the six employees were conducted on 11 July 2018.8
[9] Mr Pelser says that Communications Connect contacted Mr Hill a few days after his interview to discuss a job offer, however, they did not get an opportunity to discuss pay rates as Mr Hill rejected the offer because he had secured employment elsewhere. 9 Mr Smith says that the offer of employment that was to be made to Mr Hill was for $29 per hour compared to $30 per hour with Triforce.10
[10] On 20 July 2018, Ms Abbey Gough, Human Resource Manager at Communications Connect, wrote to Mr Smith to advise of the outcome of the interviews and recruitment stating, relevantly, as follows:
“David Hill – rejected our offer due to securing other work
Casey Freeman – Casey has been offered a role as a Splicing Technician, Full Time. Offer to be sent today, however verbal acceptance has been provided…” 11
[11] Mr Freeman was offered a position at Communications Connect as a Senior Technician for $40 an hour for 40 hours per week including RDO’s and penalties. 12 The Applicant submits that it understood that Mr Hill was going to be offered a salary structure equal to or greater than the Triforce salary package.13 The position as a Senior Technician means that Mr Freeman is operationally overseeing and supervising four people.14
[12] The Applicant submits that its initial contact with Communications Connect and subsequent involvement was the ‘driving force’ 15 behind securing other employment for the Respondents. As such, the Applicant is of the view that it has complied with the requirements of ss.120 and 122 of the Act. Section 122 is not relevant to this application. That section conditions an entitlement to redundancy pay under s.119 in particular circumstances. If the Applicant contends s.122 is engaged (a matter on which I express no opinion) the principal application would fail since there would be no entitlement amount to reduce. As there is no material relevant to whether s.122 has (other than the bare submission) been engaged I take the matter no further.
[13] The Respondents contend that the Applicant’s involvement consisted of no more than establishing the initial contact between the six employees and Communications Connect and securing an opportunity to enter the recruitment process. Further, the Respondents contend that the roles offered by Communications Connect fall well short of ‘acceptable employment’. 16 The various reasons for this contention will later be discussed, including rates of pay, the nature of employment offered and the location of employment offered.
[14] The Applicant provided the following table comparing the pay rates of Triforce and Communications Connect: 17
Item | TriForce Salary | Comms Connect Salary (Inc EBA) | Comments |
Base Salary | $90,000 plus Super | $40 per hour ($79,040) plus Super | $40 per hour as per APP 1 |
RDO | NA | $3,648 plus super (RDO offered monthly as per EBA) | If RDO worked as per the Triforce agreement additional income would be earned under the Comms Connect EBA. |
Overtime | Inclusive in base salary | 4 hours OT per week as per EBA = $12,320 plus Super | Based on time and half for first 2 hours and double time in addition as per EBA for 44 weeks per year |
Totals Per Annum | $90,000 | $95,008 plus superannuation |
[15] The Respondents contend that this table is incorrect as the Applicant says that the Triforce salary is inclusive of overtime but the Respondents say that the Applicant has been paying overtime since commencement. 18
[16] The Respondents provided the following table summarising earnings with comments: 19
Item | TriForce Salary | Comms Connect Salary (Inc EBA) | Comments |
Base Salary | $103,500 plus Super $52.38 per hour | $79,040 plus Super $40.00 per hour | $40 per hour – Comms Connect $45.55 per hour - Triforce |
RDO | No RDO | One per month | This is a day off and included in a 38 hour week every 4 weeks and does not get worked |
Overtime | Saturdays – time and half Sundays – double time(during away work) First 3 hours at time and half Double time after that. (Normal working week) | First two hours at time and a half and double time after that | This is additional to base rate |
Totals Per Annum | $90,000 Plus superannuation | $79,040 plus superannuation |
[17] The Respondents say that overtime should not be included in the base salary package as indicated in the Applicant’s comparison table. Mr Freeman has provided payslips and group certificates to evidence that on average he would work 76 hours a fortnight at an average of $52.38 per hour (including penalties). 20
[18] The Applicant rejects the salary calculations of the Respondents and says that the base salary with Triforce was $45.55 per hour and that Communications Connect offered $40 per hour. 21 Further, in response to the payslips provided by the Respondents, the Applicant says that because of payroll application restrictions, the payslips only allow for additional hourly rates to be presented as detailed in the payslips and the additional payment was not for overtime but rather for penalty rates for working a 10/4 rotation roster.22 At the hearing, Mr Freeman accepted that the additional payments were for weekend loadings rather than overtime.23 However, Mr Freeman says that he received overtime separately from weekend penalties.24
[19] The Applicant provided a further table to show the difference in income between the two positions based on a 10/4 roster. The table indicates that the fortnightly income under Triforce would be $3,980.98 and $3,760.00 with Communications Connect. 25 Further, the Applicant says that the Respondents calculation of $52.38 an hour would only be applicable if the Respondents conducted a 12 month 10/4 rotation. The Applicant says that based on normal working conditions there would only be a difference of $134.90 per week in income ($1,730.90 with Triforce compared to $1,596 with Communications Connect).
[20] At the hearing, Mr Hill gave evidence that his commute during his employment with the Applicant was around one hour, which he completed in a company owned van using a fuel card. 26 Mr Hill says that if he accepted the job with Communications Connect, he would be required to spend at least three and a half hours a day commuting to and from work in addition to an eight hour work day.27
[21] Mr Freeman says that by accepting the job with Communications Connect his employment status has lessened as at Triforce he was employed in a supervisory role. At Communications Connect he is employed only as a Fibre technician. 28
[22] I turn now to consider whether given all the circumstances the Applicant has obtained acceptable alternative employment for the Respondents.
[23] The Applicant did not call any evidence from any person at Communications Connect. In particular, it did not call Mr Pelser. At its highest the evidence establishes that Mr Wegener made contact with Communications Connect, established that it had vacancies and facilitated the attendance of the Respondents at an interview. The word “obtains” in s.120 is to be construed so that the alternative employment is the result of the conscious, intended acts of the person concerned. 29 In the instant case, the Applicant did little more than to establish contact between the Respondents and Communications Connect. The effect of the contact was that the Respondents were able to participate in a recruitment process. In my view, without more, this does not result in the Applicant having obtained alternative employment for the Respondents. This is so notwithstanding that offers of employment were subsequently made. I am therefore not persuaded that the Applicant obtained alternative employment for either of the Respondents and on this basis the application must fail.
[24] In addition, I am not persuaded that the offers of employment made to either of the Respondents by Communications Connect were on balance “acceptable employment”.
[25] In Australian Chamber of Manufacturers v Derole Nominees Pty Ltd, 30 a Full Bench of the Australian Industrial Relations Commission (AIRC) observed that:
“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 a like nature, the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.” 31
[26] The differences in the employment conditions between the redundant position and the employment is plainly relevant to the question whether the employment is “acceptable”. The concept of “other acceptable employment” was considered in NUW v Tontine Fibres 32wherein a Full Bench of the AIRC observed:
“[24] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer. In order to establish whether the alternative employment obtained by the employer is acceptable it is necessary to have regard to such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters (including the location of the employment and travelling time)…”
[27] The decision was cited with approval in Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai, 33 which explained further:
“[9] Other employment does not cease to be “acceptable” merely because it is on terms that are less advantageous to that of the terminating position. Tontine makes it clear that there are matters of degree involved.”
[28] Taking into account the evidence given, I accept that the location of the employment offered to Mr Hill was unreasonably distant in comparison to his employment with the Applicant. This would have been an extra inconvenience and cost to Mr Hill particularly given the nature of work and hours generally worked. Therefore, I can understand Mr Hill’s refusal of the offer of employment with Communications Connect.
[29] I also accept that the employment offered to the Respondents was at a rate of pay less than their previous employment. In addition, Mr Freeman was offered a position which resulted in a reduction of seniority. These factors weigh against a conclusion that the alternative employment was acceptable.
[30] I consider, having regard to the change in location and reduced pay in the case of Mr Hill, and the reduced seniority and pay in the case of Mr Freeman inherent in the offers of employment, that the alternative employment was not acceptable employment.
[31] For the reasons stated above, I am not persuaded that the Applicant has “obtained” other “acceptable” employment for the Respondents within the meaning of s.120(1)(b)(i) of the Act. Therefore, the circumstances set out in s.120(1) are not engaged. The discretion under s.120(2) is not enlivened.
[32] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
N Smith for the Applicant.
C Freeman and D Hill, Respondents.
Hearing details:
2018.
Melbourne and Brisbane (by video):
September 18.
Printed by authority of the Commonwealth Government Printer
<PR702866>
1 Transcript at PN46-PN49
2 Exhibit 1 at APP14-A and APP14-B
3 Ibid at APP12-A and APP12-B; Transcript at PN51 and PN54
4 Ibid at APP6 at [1]; Transcript at PN55
5 Ibid at APP7
6 Ibid at APP5
7 Ibid at APP9
8 Ibid at APP8
9 Ibid
10 Transcript at PN56
11 Exhibit 1 at APP13
12 Ibid at APP1 and APP2
13 Ibid at p.5
14 Transcript at PN222
15 Exhibit 1 at p. 5
16 Exhibit 4 at section 3
17 Exhibit 1 at p.4
18 Exhibit 4 at p.4
19 Ibid at p.5
20 Exhibit 3
21 Exhibit 2 at p.2
22 Ibid; Transcript at PN125
23 Transcript at PN133-PN134
24 Ibid at PN136
25 Exhibit 2 at p.3
26 Transcript at PN424-PN429
27 Ibid at PN213 and PN441
28 Exhibit 4 at p.8
29 FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90
30 (1990) 140 IR 123
31 Ibid at 124
32 [2007] AIRCFB 101
33 [2013] FWC 1327
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