[2012] FWA 3126

Download Word Document


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Suridge
v
Boral Window Systems Pty Ltd T/A Dowell Windows
(U2011/14031)

COMMISSIONER HAMPTON

ADELAIDE, 6 JULY 2012

Termination of employment - jurisdiction - whether genuine redundancy - outsourcing of maintenance function - whether job no longer required - whether due to operational reasons - whether consultation requirements met - whether it was reasonable for employee to be redeployed - consultation requirements not met - reasonable to redeploy in all of the circumstances - preliminary objection not upheld - merits of application to be heard.

INTRODUCTION AND CASE OUTLINE

[1] Mr James Suridge (Mr Suridge or the applicant) has made an application to Fair Work Australia claiming that his dismissal on 8 November 2011 by Boral Window Systems Pty Ltd T/A Dowell Windows (Dowell or the employer) was unfair.

[2] Dowell contends in part that the dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (the Act). That is, the dismissal was said to be for genuine operational reasons and occurred in the context of a decision to, in effect, outsource the maintenance functions of the employer’s window manufacturing operation at Elizabeth East. Further, it was said that the consultation requirements of the relevant industrial instrument had been met and that all reasonable redeployment options had been explored. As a result, the employer argues that the applicant’s dismissal cannot be an unfair dismissal within the meaning of s.385 of the Act.

[3] Mr Suridge contends that the dismissal was not a genuine redundancy on two principal grounds. Firstly, that Dowell did not meet the consultation obligations of the relevant industrial instrument. Secondly, that the employer did not redeploy the applicant when it was reasonable that it do so either within the immediate operations or within the broader Boral group.

[4] Section 396 of the Act requires that I deal with the employer’s jurisdictional objection before considering the merits of the application.

[5] As this matter involves contested facts, I was required by s.397 of the Act to either conduct a conference or a hearing. In accordance with s.398 of the Act, I determined that this preliminary matter would be subject to a hearing.

[6] Both parties were given permission to be legally represented. 1 Mr Ats appeared for the applicant and Mr Chadwick represented Dowell.

THE EVIDENCE BEFORE FAIR WORK AUSTRALIA

[7] Dowell led evidence from the following:

[8] Mr Suridge gave evidence and also relied upon the testimony of Mr David Kirner, Branch Secretary of the Construction, Forestry, Mining and Energy Union, Forestry and Forest Products Division (the CFMEU). Mr Kirner assisted the applicant during the course of discussions with the employer concerning the dismissal in this matter.

[9] Mr Peacock was extensively cross-examined by Mr Ats who submitted that I should find that Mr Peacock was evasive and unreliable. I do accept that at times Mr Peacock did not make reasonably obvious concessions and tended to be adversarial. However, this resulted in part from a lawyer cross-examining an engineer, with both being very particular with their language. I do not consider that Mr Peacock attempted to mislead the Tribunal, however the adversarial nature of his evidence and the fact that he was unclear on the date of certain events, such as the timing of the applicant’s return from a workers compensation absence, and in my view overstated some of the constraints surrounding the potential redeployment, mean that some of his evidence needs to be treated with caution.

[10] I generally accept the evidence of Ms Romeo and Mr Bose. Mr Worthington was a frank and impressive witness and I accept his evidence as to facts.

[11] Mr Suridge was in general terms a reliable and frank witness however his recall of the detail of the discussions at certain points was unclear. I treat those elements with caution.

[12] Mr Kirner was a frank and impressive witness and I accept his evidence as to facts.

[13] There are factual disputes, in particular about the nature of the discussions between Mr Bose and the applicant in the context of exploring ‘external’ redeployment options. I have resolved those disputes based upon my overall assessment of the relevant witnesses and the evidence more generally.

THE STATUTORY AND RELATED CONTEXT

[14] Section 385 of the Act provides as follows:

[15] In effect, s.385(1)(d) establishes that a person will not be “unfairly dismissed” within the meaning of the Act if the dismissal was the result of a “genuine redundancy”.

[16] Section 389 of the Act establishes the meaning of a genuine redundancy in the following terms:

[17] The Explanatory Memorandum 2 provides some indication of the apparent intention of the Parliament and states relevantly as follows:

[18] The parties are subject to the Boral Window Systems Ltd (Elizabeth) Agreement 2010 3 (the enterprise agreement). Clause 32 of the enterprise agreement establishes obligations in relation to the introduction of certain changes as follows:

THE NO CASE TO ANSWER SUBMISSION

[19] At the conclusion of Dowell’s case, Mr Ats for the applicant requested that leave be given to permit him to put a no case to answer proposition without making an election with respect to his client’s own evidence. In so doing, Mr Ats foreshadowed the basis of the applicant’s position in relation to s.389 of the Act and referred to a decision of Lewin C where that course of action had been adopted (Owens v Whyalla Aged Care Incorporated 4). Mr Chadwick for the respondent opposed both that course of action and the foreshadowed proposition.

[20] I ruled that in this particular case, it would be necessary for the applicant to make an election given the circumstances then evident. In so doing, I indicated that I may issue reasons as part of any decision issued in the matter.

[21] Allowing the proposition to be fully argued at that point was a matter of discretion given the statutory charter of the Tribunal and the nature of the present jurisdiction. I also accepted that should a no case to answer proposition be put, it would not necessarily mean that the applicant had to elect to call no evidence. 5 This was also a matter of discretion.

[22] However, the nature of the present matter was a relevant consideration in terms of how that discretion should be exercised. The present no case to answer application occurred in the context of the jurisdictional issue, that is, whether the dismissal of the applicant was a genuine redundancy as defined by s.389 of the Act. If it was so found, the dismissal could not be considered to be an unfair dismissal. If the dismissal was not considered to be a genuine redundancy, I would then need to hear further evidence and submissions as to whether it was unfair and if so, what remedy was appropriate. In the context of the dismissal, the question as to whether there was a valid reason for dismissal (and other matters raised by the Act) would remain a relevant consideration in any event. As all parties made clear in their written submissions, findings in the present context would however set much of the context for those later considerations.

[23] In determining the present application, I needed to weigh the cost and inconvenience to the parties of dealing with this application at that point, rather than later, on the basis of all of the evidence associated with the preliminary point. I also noted that the remaining evidence was at that point relatively limited in compass given the issues presently involved here.

[24] Some of the issues raised on behalf of Mr Suridge as part of the foreshadowed no case to answer proposition were clearly arguable, however, they were not beyond dispute based upon the evidence to that point. Further, some of the issues raised were dependent upon the evidence of the applicant and Mr Kirner and this could influence the basis upon which those elements need to be decided. I was also of the view that in this jurisdiction, circumstances where a no case to answer proposition would be appropriate are likely to be limited to cases where the outcomes are readily apparent.

[25] Given the overall context of this matter, it was not appropriate for the no case to answer proposition to be advanced at that juncture and I invited the applicant to present his case on the jurisdictional issue. I also indicated that if the applicant did not wish to do so, then in the particular context of this case, I would consider that he has made an election not to lead evidence going to the preliminary point.

[26] The applicant immediately elected to present his evidence concerning the jurisdictional issue.

THE GENERAL FACTS OF THE MATTER

[27] I will further deal with some specific factual elements as part of the consideration of the matter. However some broad factual context is necessary for that consideration.

[28] Dowell produces aluminium doors and windows and related framing for residential construction at its Elizabeth premises and in so doing employs in the order of 75 employees at the factory. The production and related workforce are covered by the enterprise agreement.

[29] Mr Suridge has been employed by Dowell at the Elizabeth factory since May 2008 having previously worked for about three months at the factory in the employ of a labour hire company, Skilled. Skilled in effect provides casual labour to Dowell which has a practice of “engaging” all non-permanent labour from that source. Labour hire employees are used by Dowell to back-fill for leave and other absences and to supplement the permanent workforce when required due to fluctuating demands.

[30] Mr Suridge undertook general maintenance work within the factory including fabrication of jigs and fixtures, plant and general tool maintenance and related activities. He was the only direct employee of Dowell undertaking such work. His work was supplemented by the use of specialist contractors particularly in the areas of tool making, electrical work and some press work. In addition, labour hire employees also undertook project and some other maintenance related work from time to time.

[31] During 2011 and early 2012, Dowell has implemented various cost saving measures in the context of a decline in market demand due to lower housing starts in South Australia. These measures have included a more focused link between labour planning and the engagement of permanent employees, a reduction in the use of labour hire employees (from 95 to 75) and an overall reduction of eight in the number of permanent employees.

[32] During late 2010 and up to mid March 2011, Mr Suridge was absent from work due to a workers compensation illness. During that time, Dowell engaged a contractor to undertake much of the role previously undertaken by the applicant. The contractor had additional skills and this meant that other, more expensive, specialist skills were required less and this produced a meaningful cost reduction for the employer. I add that whilst the implementation of some new press equipment may have contributed to these savings, the material before Fair Work Australia confirms the existence of a cost saving associated with the outsourced model being implemented.

[33] In the period commencing May 2011, after Mr Suridge’s return to work, Dowell again experienced some increase in the extent of specialist contractor usage and the consequential costs. This led Mr Peacock and others to consider the ongoing use of an outsourced maintenance service. That consideration included the assessment of available contractors and costs and the impact upon the organisation in terms of the employment of Mr Suridge.

[34] By September 2011, Dowell management had developed a detailed proposal for subsequent approval by the Boral Chief Executive Officer. The proposal was subject to a number of prerequisites including that there was greater certainty about the status and outcome of the applicant’s workers compensation claim and confirmation of the anticipated savings.

[35] In mid October 2011, an agreement to resolve and close the applicant’s workers compensation claim was reached by the parties and on 20 October this was formally endorsed by the relevant Tribunal. The settlement agreement included the re-crediting of seven weeks annual leave that had originally been taken to cover some of the workers compensation absence.

[36] On 19 October 2011, a formal proposal was made by Mr Peacock to senior Boral management seeking approval of the outsourcing of the maintenance work and the declaration of Mr Suridge’s job as redundant. It is evident that the senior management were already aware of the development of the proposal and it was approved on the same day. The proposal also indicated that the employer had sought to explore other internal options but none had been found.  6

[37] On 19 October 2011, Mr Worthington arranged to meet Mr Kirner the following day to discuss restructuring at the factory.

[38] On 20 October, Mr Kirner was informally advised by Mr Peacock of the outsourcing decision on the way to a meeting involving them, the applicant, Mr Worthington and Ms Romeo (by phone). In advance of that meeting, correspondence to advise of the outsourcing and redundancy had been prepared and an outplacement service provider (Mr Ots) had been organised to wait in an adjoining room.

[39] At some stage early in the meeting, the prepared letter was handed to Mr Suridge and it read, in part, as follows:

[40] I add that at some later stage during the initial meeting, Mr Suridge was requested to sign the document and after consulting Mr Kirner, he refused.

[41] During the meeting, Mr Peacock advised that the business was continuing to struggle and that management was continuing to pursue costs savings. He also advised that as a result, they planned to outsource the maintenance area to an organisation that could provide a number of specialist skills, and that as a result, the position occupied by Mr Suridge had been made redundant.

[42] Mr Kirner acknowledged that it was the prerogative of the business to structure the business as needed and observed in effect that this had occurred on other occasions including when outsourced work had been converted to direct employment. He also strongly advised management that Dowell was obliged to redeploy Mr Suridge. Mr Suridge questioned whether a contractor who had filled in for him during the earlier absence was going to get his job. Mr Peacock advised that they intended to use a specialist firm to conduct the maintenance and this would reduce the need to call in toolmakers.

[43] Mr Kirner again indicated that Dowell should offer alternative work to Mr Suridge. Mr Peacock indicated that they would look at redeployment options and would welcome ideas. He also indicated that over the previous two years they had not been replacing employees who had left and that there was not sufficient volume to sustain the size of the organisation. Mr Suridge raised the fact that a contractor was still on-site doing some maintenance related work and stated that this confirmed that the role was still required. Mr Peacock indicated that that contractor was engaged on a specific project that was about to conclude.

[44] Mr Peacock indicated that he appreciated that this would be difficult for Mr Suridge and confirmed that assistance would be available in the form of an outplacement consultant (who was waiting outside) who could assist if no position was found and that he would be willing to act as a referee.

[45] Mr Kirner requested that the applicant be considered for production work and/or permitted to take his unused annual leave to allow further time to look for redeployment opportunities. This was rejected and Mr Suridge was directed not to come into work (on pay) until a further meeting was held.

[46] At the conclusion of the meeting on 20 October 2011, Mr Peacock and Mr Kirner discussed and agreed the terms of a script that was to be used by management to advise the rest of the workforce. I interpose that a staff meeting was held later on that day. It was agreed that the meeting would reconvene on Monday 24 October 2011 and Mr Suridge confirmed which personal belongings he wanted to take with him (which Mr Worthington collected) and returned his keys. Mr Suridge was also reminded that he had access to the Boral employee assistance program.

[47] As the applicant left the meeting on 20 October 2011 he met Mr Ots but did not wish to have any discussion given the circumstances including his distress at the announced redundancy. The applicant left the premises accompanied by Mr Peacock and Mr Kirner.

[48] On 20 October 2011, Ms Romeo sent an email to various human resources managers and offices from the South Australian businesses within the Boral group and this indicated in part:

[49] I interpose that the reference to the extent of Mr Suridge’s welding and fabrication skills was unhelpful, and rather unfair, given the nature of his work and prior history.

[50] Ms Romeo also subsequently followed up with various human resources and recruitment staff within the Boral group and no offers of redeployment for Mr Suridge arose from those contacts.

[51] On 21 October 2011, the CFMEU notified a dispute to Fair Work Australia and this was apparently provided to Dowell on 25 October.

[52] A follow-up meeting was conducted on 24 October 2011 at which the applicant, Mr Kirner, Mr Peacock and Mr Worthington attended. That meeting principally dealt with some of the positions being occupied by the labour hire employees and in addition, a position for a Transport Supervisor and a Sprayer Driver were briefly discussed. Mr Kirner and Mr Suridge confirmed in effect that the applicant had a preference for work in maintenance but would be interested, at least in the short term, in other options including in production or transport. Further, the applicant had a preference to remain at the Elizabeth factory and would be happy to remain in the maintenance area until the new arrangements commenced, or in other roles, to await other opportunities.

[53] Mr Kirner also indicated in effect that the applicant would not be interested in interstate jobs due to his family commitments but that Boral group positions within the metropolitan or adjacent areas would be an option. Mr Kirner again proposed that the applicant undertake any short term work in maintenance or production areas and/or use his annual leave to await further redeployment opportunities. The concept of the applicant swapping or job sharing roles was also raised on his behalf.

[54] Mr Suridge confirmed that he would consider the Transport Supervisor position and contact Boral if he was interested. He also indicated that he was interested in a truck driving position and was willing to obtain the necessary licence to undertake that work.

[55] Mr Peacock advised that Dowell’s Lean/Safety Facilitator would coordinate maintenance in the interim and that the new arrangements would be implemented soon. However, at no stage was the fact that the specialist contractor was not commencing immediately, or the use of a labour hire employee in the interim, disclosed. 7 He also indicated that there were available labour hire roles and that these were managed by Skilled. The meeting on 24 October concluded on the basis that a further meeting would be conducted to explore redeployment and that the date of the redundancy would be postponed to that time.

[56] On 1 November, Dowell confirmed its position in writing to Mr Suridge and this included a summary of events to that point and the reservation of its right to proceed with the termination of his employment due to redundancy notwithstanding that it would participate in the Fair Work Australia proceedings and extend the postponement of the redundancy to allow that to occur.

[57] On 2 November 2011, the applicant, Mr Kirner, Mr Peacock and Mr Worthington met and discussed the matter including the positions outlined by Dowell in its earlier correspondence. This included a discussion of the identified jobs and the circumstances surrounding the use of the labour hire employees and the CFMEU proposition that the applicant undertake work in production, warehouse, fabrication and/or maintenance areas and use annual leave as required in order to allow more time to consider redeployment. Some direct employment jobs were discussed; being an Administration Officer position, Sprayer Driver, Quarry Manager and Transport Supervisor.

[58] At that meeting, Mr Peacock also provided to Mr Suridge or Mr Kirner a printout of the Boral group jobs that were displayed on the company’s website.

[59] At some stage, Mr Peacock left the meeting and found out that the Sprayer Driver position was no longer available. He did however confirm that given the applicant’s interest in the Transport Supervisor role, he had arranged a discussion with the Boral Recruitment Officer (Mr Bose) to consider his availability for the position. That meeting was arranged for the next morning.

[60] Mr Suridge met with Mr Bose on 3 November 2011. Although much was made by the parties about whether this meeting was an “interview” or not, it is evident that this was a meeting to consider whether the applicant was suitable for the Transport Supervisor position and potentially to explore other opportunities. If it was an interview, it was a preliminary stage given that any decisions about employment would be made following additional processes.

[61] Mr Bose discussed the Transport Supervisor job description and asked Mr Suridge about his background, employment history and personal circumstances. This included the degree that the applicant had supervised others and the extent to which he had experience in dealing with customers, sales and marketing people. Mr Bose considered that Mr Suridge was not qualified for the position and without explaining his position briefly explored the applicant’s interests in other jobs. The applicant was requested to send in his resume. I interpose that although the applicant is still apparently seeking employment within Boral, he did not subsequently supply his resume to Mr Bose, due mainly to the fact that he obtained some employment as a welder shortly after his dismissal.

[62] On 4 November 2011, Mr Bose advised the applicant by email that he was unsuccessful for the Transport Supervisor role.

[63] On 7 November 2011, the parties attended conciliation proceedings before O’Callaghan SDP. At the conclusion of the proceedings, the Senior Deputy President issued a statement that included a summary of the parties positions including that Dowell considered it had met all of the obligations and that the CFMEU contended that there were viable redeployment options available and that Mr Suridge would take annual leave to enable the issues to be resolved. The Senior Deputy President also noted that the matter could be listed for arbitration and that Dowell had reserved the right to make the applicant redundant before the next scheduled hearing.

[64] The next day, Dowell convened a meeting with the applicant, Mr Kirner, Mr Peacock and Mr Worthington. Mr Peacock advised that Mr Suridge was being terminated on the basis that his position had been made redundant and the employer had been unsuccessful in locating an alternative role for him. Mr Suridge was provided with a termination letter which confirmed that outcome and that he would be paid three weeks in lieu of notice and nine weeks severance payments. The letter also indicated that the applicant would receive his outstanding statutory entitlements and the offer of outplacements services was confirmed.

[65] Dowell ultimately did not employ a direct employee in the Driving role and has continued to use labour hire given a reduction in the requirements for what is a third truck within its fleet. Dowell has continued to extensively utilise labour hire employees in its production and transport area and this has involved one or more such workers on almost all normal working days following the applicant’s dismissal.

[66] It is also clear that the various production roles that were undertaken by the labour hire employees were well within the applicant’s competencies and he would have been able to undertake those roles with very limited additional induction.

[67] In terms of the maintenance area, the specialised contractor did not commence until January 2012, apparently due to illness, and Dowell utilised labour hire personnel in the intervening period. Whilst there were some tasks that would have required additional skills, the applicant could have effectively fulfilled the maintenance role pending the commencement of the new arrangements.

[68] Some vacancies within the Boral group have arisen since his dismissal and the applicant would have been qualified to apply for those positions, or been considered for redeployment, if he remained employed by Dowell or within the Boral group at the time.

CONSIDERATION

Was Mr Suridge made redundant - section 389(1)(a)?

[69] This involves a consideration of two related aspects; namely, did Dowell no longer require the applicant’s job to be performed by anyone and if so, was this because of changes in the operational requirements of the employer’s enterprise?

[70] The respondent contended that it changed the basis upon which the maintenance work was to be performed such that it no longer needed to have a directly employed maintenance person. Rather, it would rely upon contractors with more extensive skills and thereby reducing the degree to which specialist (tooling) contractors, who were regularly required to supplement Mr Suridge, were to be required into the future.

[71] The applicant did not ultimately contest this element.

[72] The concept of a job no longer being required to be performed in the context of alleged redundancy has been considered in a number of authorities. 8 The term is also used as part of the formulation of the definition for the purposes of redundancy payments in s.119 of the Act. Further, as is clear from the authorities9, the test is not whether the duties survived in some form. Rather, it is a question as to whether the previous job has survived the restructure or downsizing.

[73] It is evident to me that Dowell changed its operational requirements to outsource the maintenance work. It is also clear that the job that had been performed by the applicant is no longer being performed by an employee of Dowell. Although this circumstance is not one outlined in the Explanatory Memorandum, they are only examples and the outsourcing of a function to an independent contracting organisation as in this case, is a redundancy for present purposes.

[74] The reference to having the job no longer performed by anyone, must mean by anyone employed by the business 10 and to extend that to include an independent contractor supplying services would produce unintended consequences including that employees displaced in this way would not be entitled to severance pay.

[75] Accordingly, I accept that the requirements of s.389(1)(a) of the Act have been met in this matter.

Did Dowell consult as required about the redundancy - section 389(1)(b)?

[76] This involves a consideration of the obligations established by the enterprise agreement and in particular, whether Dowell has complied with any obligation in that instrument to consult about the redundancy.

[77] The construction of the terms of the enterprise agreement should be undertaken in light of the decision of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union 11 as applied in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation12 and Kucks v CSR Ltd.13

[78] As a result, the approach begins with a consideration of the ordinary meaning of the words of the enterprise agreement. Further, I am obliged to take a purposive approach having regard to the whole of the particular clauses, the agreement as a whole and the context in which it was made and approved. In addition, a narrow or pedantic approach is not to be taken and the intention of the framers of the document is to be ascertained objectively.

 [79]  Dowell accepted that the circumstances contemplated in clause 32.2 of the enterprise agreement (Company’s duty to discuss change) were part of the relevant consultation obligations for the purposes of s.389(1)(b) of the Act. However it also contended that clause 32.1 (Company’s duty to notify) was not part of a relevant consultative obligation and accordingly was not presently relevant. 14

[80] It is reasonably apparent that the decision to change the manner in which maintenance was performed, and the consequential decision to dismiss Mr Suridge, fall within the meaning of significant effect as defined in clause 32.1 of the enterprise agreement. It is also apparent to me that the obligation to notify of the proposed changes is an integral part of the consultative obligations of the enterprise agreement apposite to this matter.

[81] In that light, Dowell was obliged to consult about the redundancy. The provisions of clause 32 of the enterprise agreement required that it do the following:

[82] The respondent contended that clause 32 of the enterprise agreement was triggered when a plan to introduce the change had been made. This, it was said, occurred on 19 October 2011 when Mr Peacock received approval from the Boral CEO to introduce the changes. That is, the planning for the major change could only commence when Mr Peacock had approval and prior to that point costs were being analysed and options considered but no plans had been made.

[83] Dowell further contends that a day later, it provided to Mr Suridge and the CFMEU written details about the planned changes and subsequently discussed the change with those affected and considered the mitigation options over three different meetings. This, it was said, met all of the relevant requirements of clause 32 of the enterprise agreement and s.389(1)(b) of the Act.

[84] The applicant contended that clause 32 was triggered by a plan, or a proposal, to introduce significant change and this was an earlier concept than a definite decision. In this case it was said that a plan for present purposes was formulated at least by 5 September 2011 when Dowell management decided to make the change, subject to approval. This was reinforced by the reference in the provision to the supply of information about any “proposed” change.

[85] Mr Suridge also argued that Dowell had only advised him and the CFMEU when it had already made a definite decision to make the change and at the point it was actually implementing the redundancy. This, it was said, was contrary to clause 32 and meant that Dowell had not met the consultation obligations of the enterprise agreement.

[86] The applicant further argued that Dowell was obliged to discuss the effects and measures to avert and mitigate the consequences and to give prompt attention to matters raised by the employee(s) affected. It was suggested that in this case Dowell did not in practice consider the various proposals advanced by the applicant and the CFMEU and merely “dismissed them out of hand”. In addition, Mr Suridge contended that the only reason that these proposals were not accepted was that Dowell wanted to avoid his workplace rights (costs of employment, access to notice when/if work ran out) and this could not be a reasonable basis to reject them.

[87] The applicant speculated that if any of his proposals had been accepted he would still be in employment and would have readily been available to accept further reasonable redeployment options that may have arisen in that time.

[88] Given the relevant terms of the enterprise agreement and the nature of the changes leading to the applicant’s redundancy, it will not be a genuine redundancy for present purposes unless all the consultation requirements of clause 32 have been met. I will deal with each of the requirements in turn although each requirement garners context from each other.

Did Dowell notify in writing when it was planning to introduce the changes?

[89] Dowell provided written notification of the changes on 20 October 2011, the day after approval for the introduction of the change was given by senior management. There is no doubt that at that point, the employer in fact advised of a change in maintenance arrangements that was being implemented, that Mr Suridge’s would be made redundant (with details of his cessation benefits provided) and in effect, he was to leave the workplace immediately whilst redeployment options were explored.

[90] The immediate question requires the determination as to when the “planning” of the proposed change took place within the contemplation of clause 32. The terminology adopted in the agreement is different to that applying in most modern awards, which refer to “when a definite decision has been made” to introduce the change. 15 The agreement clause refers to a point in time when Dowell is “planning” to introduce the change and this clearly implies that something beyond speculation, option generation and consideration has taken place. Indeed, the whole provision is based on the existence of proposed changes about which advice is to be given. However, the provision also conditions that point in time with the phrase “whether or not a decision has been made”. This must mean that the point at which the consultation is required may be when plans are being finalised and prior to a definite decision to actually introduce the changes being made. This requires an assessment of the intent of the provision in the particular context of the facts as I have found them.

[91] I am inclined to the view that what was announced in this case was a definite decision that was being implemented at that point and this was well beyond the planning of a proposed change as contemplated by clause 32 of the enterprise agreement. On that basis, Dowell did not notify as required as part of the consultation obligation. This has consequences for the nature of information that should have been provided and potentially for the jurisdictional objection more generally. I will also however for completeness, deal with the consequences of an alternative approach to the application of clause 32.1.

Did Dowell provide the relevant information about the change?

[92] There is little evidence about the details of the information provided beyond the letter provided to Mr Suridge on 20 October 2011. This did not describe the basis of the decision to restructure the maintenance work, however it is clear that Mr Suridge and the union were advised that as part of the cost reduction strategy the maintenance work was being outsourced to an operation or “business” that could supply specialist skills.

[93] Dowell did not provide information about the basis of the decision (the comparative costings) or the details as to who was to be doing the outsourced work, except for confirmation that it was not to be a particular worker who had filled in for the applicant when he was absent on workers compensation. Further, the employer did not provide details about when the new arrangement was being implemented or what was to happen in the interim.

[94] If I am correct about the application of clause 32.1 of the enterprise agreement, the relevant information would need to have included details about the basis of the likely cost savings and more importantly, the details of the proposed new arrangements.

[95] Alternatively, if clause 32.1 of the enterprise agreement did not require earlier disclosure, I would consider that with two exceptions, relevant information about the changes was provided to the applicant and the CFMEU. That is, given the basis and effect of the decision, the focus of the information required at that point was to enable those affected to understand the nature and impact of the change and to properly negotiate about the consequences.

[96] However, the absence of information about the timing of the changes and the interim arrangements was a relevant factor, particularly given that these went to mitigation options and had a direct bearing upon the workability of proposals that Mr Suridge and the CFMEU were advancing. Further, the details as to how the new arrangements would work fall within the scope of information required by clause 32.2(b). This information was also not such as to be inimical to the company’s interests.

[97] On this basis, and irrespective of the approach taken to clause 32.1, Dowell did not provide all of the relevant information contemplated by clause 32.2(b) of the enterprise agreement as part of the consultation obligations.

Did Dowell discuss the changes and the mitigation of the adverse effect as soon as practical after notification and give prompt consideration to matters raised by the applicant and/or the CFMEU?

[98] Subject to the following discussion, I accept that Dowell participated in discussions about the changes and the mitigation of the adverse effects as soon as practical after the notification.

[99] The importance of consultation in terms of the notification to employees, the discussion of mitigation and the consideration of alternative suggestions has been emphasised in a number of decisions of Fair Work Australia and its predecessors. 16 This is relevant, however the Act relevantly directs the consideration in s.389(1)(b) to the consultation obligations of the particular instrument concerned.

[100] The obligation under the enterprise agreement is to discuss mitigation and to give prompt consideration to matters raised by the applicant and the CFMEU. The relevant matters raised included that Mr Suridge in effect be redeployed into one or more of the production, maintenance or transport areas of the business where labour hire employees were being used with access to his extensive accrued annul leave in the event that sufficient work was not available at any time. This was raised in the context of either being a permanent solution or an interim measure whilst further redeployment opportunities could arise and be explored.

[101] The nature of these requirements in the present context also has its genesis in the “TCR” test cases of 1984. 17 It is evident that the concept of genuinely discussing mitigation, and considering options raised by those affected, both form part of the requirements of the enterprise. It is also evident that Dowell was not required to agree to the options raised by or on behalf of the applicant provided it genuinely discussed and considered them.

[102] It is evident to me that Dowell approached the initial meeting with the applicant and the CFMEU on 20 October 2011 on the presumption that the applicant would be leaving the company. This is reinforced by the nature and tone of the letter provided to the applicant and the fact that it had arranged for an outplacement provider to attend, rather than someone who would directly assist with internal redeployment options.

[103] Dowell did previously consider redeployment and concluded from its perspective that it was not feasible. It also did invite suggestions of redeployment options and followed up with some possibilities within the Boral group.

[104] In terms of the various mitigation options raised by or on behalf of the applicant, I am not satisfied that Dowell genuinely considered any of the proposals for redeployment at the Elizabeth operation within the meaning of the enterprise agreement provision. This is reinforced by the fact that it did not explore to any degree the extent of annual leave accrual held by the applicant, or the implications of some of the other proposals, and did not give any meaningful response to the proposals prior to the dismissal.

[105] On the basis of the above findings and conclusions, Dowell has not complied with the relevant consultation obligations under the enterprise agreement as required by s.389(1)(b) of the Act.

Would it have been reasonable in all of the circumstances for Dowell to redeploy Mr Suridge - s.389(2)?

[106] The above finding is sufficient to deal with the preliminary objection. However, the consideration raised by s.389 of the Act was fully argued and may have some bearing upon the substantive hearing in this matter. 18

[107] This involves a consideration as to whether it would have been reasonable in all the circumstances for the applicant to have been redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. It is accepted that the entities within the broader Boral group are associated for this purpose.

[108] The respondent contended that the assessment of reasonableness or otherwise of redeployment options had to be considered at the time of dismissal. Further, at that point, there were no reasonable redeployment positions available that Mr Suridge could, and wished to, undertake.

[109] Dowell further contended that the applicant was not particularly interested in redeployment options and that in any event it provided details of all available positions within the Boral group and considered Mr Suridge in that context. In terms of the Elizabeth site, Dowell contended that there were no positions as part of its permanent workforce and given that it did not employ casuals, it was not reasonable or appropriate to redeploy the applicant into any of the roles that were undertaken by the labour hire employees from time to time. In that light, it was not reasonable that the employer be required to disregard its labour (hiring) model, to create a position for the applicant 19, or to delay what was an inevitable decision, given the restructuring decision in the first place.

[110] The applicant contended that it would have been reasonable for Dowell to have redeployed Mr Suridge within the Elizabeth factory or within the Boral group more generally. In particular, it was argued that reasonable redeployment meant more than identifying potential positions and allowing the applicant to apply for them, particularly without any preference.

[111] Mr Suridge in particular contended that there were a number of positions within the production, maintenance, and potentially other, areas of the Dowell operations where he had the necessary skills, training and intent to undertake those roles. The fact that labour hire employees were used in those roles did not mean that these redeployment options were not appropriate and reasonable. This included the option of undertaking those roles pending other positions becoming available that would also be appropriate for the applicant.

[112] It was also argued by the applicant that the only reasons the internal redeployment options were not offered was that the employer was seeking to avoid his workplace rights. That is, the applicant was entitled under the enterprise agreement to ongoing employment and could not be stood-down from time to time whereas the labour hire employees could come and go as required without raising issues of severance pay or notice. The differential in costs between direct employment under the enterprise agreement and the labour hire costs was also alleged to be relevant. This it was said, meant that the applicant’s workplace rights were the real reason for the decision not to offer redeployment and an unlawful reason could not be a reasonable decision or a valid reason for the ultimate dismissal.

[113] Given that the applicant was not in fact redeployed, in the present statutory context the immediate issue is whether it would have been reasonable in all of the circumstances for Dowell to have done so.

[114] In Ulan Coal Mines Limited v. Honeysett and others 20, (Ulan No.2) a Full Bench of the Tribunal considered s.389(2) of the Act and said:

[115] The approach in Ulan No.2 confirms that the appropriate reference point is the time of the dismissal, which in this case was 8 November 2011. Further, although the list of considerations is not exhaustive, they include the nature of any available positions, the nature of the job requirements, the capacity of the employee to undertake those requirements and the location and remuneration of any suitable positions. It is also evident that the assessment of reasonableness is to be undertaken having regard to all of the particular circumstances associated with the relevant dismissal.

[116] In Ulan No.2 the Full Bench also made the following observations about the operation of the Act:

[117] The evidence reveals that within the Dowell operation, the relevant ‘available’ positions as at 8 November 2011 were being undertaken by the use of labour hire employees. This included:

[118] The evidence also reveals that on almost all of the working days that occurred following the dismissal and up until late January of this year one or more labour hire employees were engaged in one or more of the above capacities. It should have been reasonably apparent to Dowell in early November 2011 that this was likely to be the case for some time into the future.

[119] In terms of the capacity and suitability of the applicant, I consider that the applicant could have undertaken any one of these roles, albeit that he would need to obtain a basic truck licence for that particular role. This includes his capacity to undertake the interim maintenance role and the various production roles given his skills and training undertaken as part of his former maintenance role.

[120] Part of the relevant circumstances is that the business of Dowell is under some trading constraints and this has led to the overall reduction in the production (and maintenance) workforce and the need to retain the flexibility to expand and contract some of the total workforce to meet production fluctuations. These are important considerations. I would also add that this present application does not involve an evaluation of the employer’s employment strategy; this is fundamentally a matter for it. Indeed, the fact that it operates on that basis is itself a consideration. The only question is whether it would have been reasonable in all of the particular circumstances evident here for Dowell to have redeployed the applicant at the time of dismissal.

[121] I accept for present purposes that where an employer had no ongoing or predictable requirements for some direct employment within its operations, it would not generally be required as a reasonable measure to create a position in order to redeploy a redundant employee. However in this case, there is an ongoing and generally predictable level of demand for the supplementary labour including the regular backfilling of on-going permanent positions; the applicant was an existing permanent employee who had been made redundant and Dowell was under an obligation to genuinely consider mitigation of the consequences; the applicant had stated his willingness to undertake a production role in the knowledge that it would be supplementary (but not casual) in nature; and he had stated his willingness to take individual days of annual leave to cover any days when there was no requirement. 21 In that context, I also note that the applicant had in the order of nine weeks of annual leave that could have been used for that purpose.

[122] Importantly, the redeployment of the applicant could have been accommodated at the time without requiring the employer to restructure its approach to staffing and the use of labour hire more generally. I also observe that if, contrary to present indications, the circumstances become such that there was subsequently no need for regular labour that could be performed by the applicant, Dowell could at that point have assessed redundancy and redeployment options.

[123] In all of these particular circumstances, and noting the fact that there were positions for which Mr Suridge was qualified and suitable and wanted to perform, it would have been reasonable for Dowell to have redeployed the applicant at the time of the dismissal.

[124] Given this finding it is not necessary to deal with the broader question of redeployment within the Boral group. I do consider that the applicant was not fully motivated at the time to pursue opportunities outside of the Elizabeth factory however this is not presently relevant.

[125] It is also not necessary that I deal with the applicant’s contention that the decision not to redeploy was improperly based upon his workplace rights. 22 I do note however that there may be a difference between the “proximate reason” - the objectively based cause of the situation, which may arise from the costs of an industrial instrument or the nature of the employment concerned as against the immediate or “operative reason” - because the person is entitled to the benefit of an industrial instrument or other workplace right.23

CONCLUSIONS

[126] Dowell has not complied with the relevant consultation obligations under the enterprise agreement as called up by s.389(1)(b) of the Act.

[127] I am also satisfied that it would have been reasonable in all the particular circumstances evident here for Dowell to have redeployed the applicant at the time of the dismissal.

[128] As a result, the applicant’s dismissal was not a genuine redundancy within the meaning of s.389 of the Act.

[129] The preliminary objection is not sustained and the matter will be subject to directions shortly to facilitate a hearing and determination of the substance of the application.

COMMISSIONER

Appearances:

M Ats of Lieschke & Weatherill, with permission, for the Applicant.

N Chadwick of Chadwick Workplace Law, with permission, for Boral Window Systems Pty Ltd T/A Dowell Windows.

Hearing details:

2012.
Adelaide:
March 21, 22
May 1, 2
June 4.

 1   S.596 of the Act.

 2   Explanatory Memorandum in relation to the Fair Work Bill 2008.

 3   The enterprise agreement has been approved by Fair Work Australia under the Act.

 4   Owens v Whyalla Aged Care Incorporated [2007] AIRC 245, 12 April 2007.

 5   A useful summary of the normal legal principals is set out by Layton J of the Supreme Court of SA in Naiama Pastoral Company Pty Ltd & Anor v Plan 4 Insurance Services Pty Ltd & Ors [2010] SASC 105 at par 34.

 6   Exhibit A6.

 7   Transcript PN1585.

 8   R v Industrial Commission of SA; Ex parte: Adelaide Milk Supply Cooperative (1977) 16 SASR 6; Termination, Change & Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; and Short v Hercus (1993) 40 FCR 511.

 9   A consistent approach on this particular issue has been taken in decisions by Fair Work Australia including in M v LD Pty Ltd [2009] FWA 1676, 22 December 2009 per O’Callaghan SDP and on appeal in [2010] FWAFB 979, 10 February 2010 per Boulton J, Ives DP and Gay C; McAlister v Bradken Limited [2010] FWA 203, 22 January 2010, per Richards SDP; Kekeris v A Hartrodt Australia Pty Ltd [2010] FWA 674, 19 February 2010 per Hamberger SDP; Manoor and Prasad v United Petroleum Pty Ltd [2010] FWA 2571, 31 March 2010 per Smith C; and as confirmed in the Explanatory Memorandum at par 1553. This approach to the meaning of a genuine redundancy was also confirmed by the Full Bench in Ulan Coal Mines Limited v Henry Jon Howarth and others [2010] FWAFB 3488, 10 May 2010 per Boulton J, Drake SDP and McKenna C.

 10   See the discussion by the Full Bench in Shop, Distributive and Allied Employees Association v Bunnings Building Supplies Pty Ltd t/as Bunnings Warehouse AIRC PR949303, 15 July 2004 per Harrison SDP, Ives DP and Cribb C at par 21.

 11   (2005) 222 CLR 241.

 12   [2007] FCA 1515.

 13   (1996) 66 IR 184. See also City of Wanneroo v AMCSU (2006) 153 IR 426, per French J.

 14   Dowell appeared to initially accept that all of the requirements of clause 32 of the enterprise agreement applied as a consultative obligation for present purposes - transcript PN3678 however this was clarified during the closing submissions.

 15   See for example the consultation provisions of the Manufacturing and Associated Industries and Occupations Award 2010 at clause 9.1. The modern award provisions, and the model provision in Schedule 2.3 of the FW Regulations, ultimately have their geniuses in the Termination Change and Redundancy Case conducted by the Australian Conciliation and Arbitration Commission in 1984. See the discussion of this aspect in 8 IR 34 at 52 and 9 IR 115 at 126 and 127.

 16   See the discussion in Purdon v The Ascent Group Australia Ltd T/A The Ascent Group [2012] FWA 2459, per Watson VP; The Australian Workers’ Union and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tristar [2007] AIRCFB 506, 21 June 2007 per Giudice J and Spencer C; and Ulan Coal Mines Limited v Henry Jon Howarth and others [2010] FWAFB 3488, 10 May 2010 per Boulton J, Drake SDP and McKenna C.

 17   Termination Change and Redundancy Case conducted by the Australian Conciliation and Arbitration Commission in 1984. See the discussion of this aspect in 9 IR 115 at 126 and 127.

 18   I do note however that different considerations apply in terms of whether the dismissal was unfair, and if remedy becomes relevant, different considerations may apply to potential reinstatement.

 19   Dowell referred to McAlister v Bradken Limited [2010] FWA 203, 22 January 2010, per Richards SDP as support for the proposition that there was no positive obligation on the employer to make a position available where it was not vacant.

 20   [2010] FWAFB 7578, 12 November 2010 per Giudice J, Hamberger SDP and Cambridge C. This was applied by another Full Bench in Jenny Craig Weight Loss Centres Pty Ltd v Margolina [201] FWAFB 9137, 23 December 2011, per Giudice J, Hamilton DP and Roberts C.

 21   See: Jenny Craig Weight Loss Centres Pty Ltd v Margolina as an example of the significance of employee attitude to an alternative position.

 22   The workplace rights contention of the applicant was based upon the decision of the Federal Court in Greater Dandenong City Council v AMCSU [2001] FCA 349.

 23   See Branson J in MUA v CSL Australia [2002] FCA 513 and North J in AMIEU v Belandra Pty Ltd and others V416 of 2002.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR522326>