United Workers' Union v Serco Australia Pty Limited Summary

[2025] FWC 595

FAIR WORK COMMISSION

RECOMMENDATION
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Workers' Union
v
Serco Australia Pty Limited.
(C2025/1140)

COMMISSIONER CONNOLLY

MELBOURNE, 27 FEBRUARY 2025

Application to deal with a dispute under an enterprise agreement.
Background

[1]      The Applicant has filed an application under s.739 of the Fair Work Act 2009 (Cth) with respect to the redundancy provisions contained within clauses 25 & 26 of the Serco Immigration Services Enterprise Agreement 2023 (the Agreement).
[2]      The Respondent’s contract for the provision of Immigration and Detention services to the Department of Home Affairs has not been renewed. Consequently, the provision of services for the immigration detention centres covered by the Agreement will soon transition to the incoming contractor (Secure Journeys).
[3]      The parties have categorised employees of the Respondent in Western Australia working at Yongah Hill Immigration Detention Centre and the Perth Immigration Detention Centre covered by the Agreement into three groups:
1)Employees of the Respondent who are being redeployed with the Respondent. (Category 1 employees);
2)Employees who have no intention to commence employment with the incoming contractor and have not been redeployed with the Respondent. (Category 2 employees); and
3)Employees who intend to commence employment with the incoming contractor. (Category 3 employees).

[4]      The parties agree that employees within Category 2 are entitled to redundancy under the Agreement. The parties are in dispute on the entitlement to redundancy of Category 3 employees.
[5]      The Respondent is seeking to be satisfied employees in Category 2 meet the requirements of a “bona fide redundancy” for the purposes of the payment of redundancy entitlements. To this end the Respondent is seeking employees in Category 2 provide an undertaking that they do not intend to commence employment with the incoming contractor and will not commence employment within a period of potential continuity.
[6]      The Dispute was the subject of a conciliation conference before the Commission on 26 February 2025.
[7]      In the interest of resolving part of the dispute, the parties have agreed to the Commission issuing this recommendation.
[8]      It is understood and accepted that the legal rights of the partes with respect to all other matters subject to this dispute application are preserved.
Recommendation
[9]      Employees of the Respondent employed at the Yongah Hill Immigration Detention Centre or the Perth Immigration Detention Centre who fall within the meaning of Category 2 employees who do not wish to accept an offer of employment with the incoming contractor, are recommended to confirm the following in writing to the Respondent:
1)Confirmation that they have not accepted or entered into any arrangement for employment with the incoming contractor;
2)Confirmation that they wish to be advised by the Respondent of their last day of employment, preferably the transition date of their centre; and
3)In exchange for the Respondent paying to the employee their entitlement to redundancy benefits pursuant to the Agreement and applying the concessional tax treatment for a bona fide redundancy payment, it is the Commission’s recommendation that the employee confirm to the Respondent that they will not enter employment with the incoming contractor for the four month period commencing from their last day of employment with the Respondent.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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The United Workers' Union brought an application to the Fair Work Commission under section 739 of the Fair Work Act 2009 concerning the redundancy provisions in the Serco Immigration Services Enterprise Agreement 2023. The dispute arose following Serco Australia's contract with the Department of Home Affairs not being renewed, leading to a transition of services to Secure Journeys. Employees were categorised into three groups based on their employment status and intentions regarding the incoming contractor. The primary issue was the entitlement to redundancy for employees in Category 3, those intending to commence employment with Secure Journeys. Serco Australia sought confirmation from Category 2 employees, who had no intention to join the incoming contractor, that they would not do so within a specified period to meet the requirements for a "bona fide redundancy."

The Fair Work Commission had to determine whether the employees in Category 2 were eligible for redundancy benefits and if the conditions proposed by Serco Australia were reasonable and necessary to establish the bona fide nature of the redundancy. The Commission considered the implications of the parties' agreement that Category 2 employees were entitled to redundancy but disagreed on Category 3 employees' entitlements. The Commission had to balance the rights of the employees against the Respondent's need to ensure the redundancy was bona fide.

The Commission recommended that Category 2 employees, who did not intend to join the incoming contractor, confirm in writing that they had not accepted any employment with the incoming contractor, wished to be informed of their last day of employment, and would not seek employment with the incoming contractor for four months following their last day with Serco Australia. This recommendation was made to ensure the redundancy was bona fide, thus allowing the Respondent to pay redundancy benefits under the Agreement and apply the concessional tax treatment. The Commission preserved the legal rights of the parties on all other matters related to the dispute.

United Workers' Union v Serco Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established