1
Fair Work Act 2009
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
DL Employment Pty Ltd
(C2014/289)
SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 4 AUGUST 2014
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)] - Suitable alternate work.
[1] On 8 July 2014 I delivered Reasons for Decision1 for my finding, delivered in
transcript on 28 April 2014, regarding the preliminary legal submission of DL Employment
(DLE). I indicated that I would provide separate Reasons for Decision2 for my Findings and
Orders of the same date regarding those individual employees who I had found were not
offered suitable alternate duties, and who were entitled to redundancy benefits pursuant to the
DL Employment Pty Ltd Enterprise Bargaining Agreement 2012-2015 (the DLE Agreement).
I will now do so.
Mr Mark McNeil
[2] Mr McNeil provided a statement3. Mr McNeil is 56 years old. His evidence as to his
personal circumstances is set out below.
He had been employed by Darrell Lea for 13 years as a maintenance fitter.
He works on the night shift from 10.30pm to 6.30am.
He lives in Miranda with his wife and 10-year-old daughter.
It takes him 9 minutes to drive from Miranda to Kogarah.
His sister Michelle is physically and mentally disabled as a result of a push bike
accident which occurred when she was 10 years old. She was in a coma for 12 months
and will need care for the rest of her life.
[2014] FWC 4914
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 4914
2
Michelle lives with Mr McNeil's mother who is 84 years old. They live in a unit 5
minutes drive from Mr McNeil's residence. Mrs McNeil used to care for Michelle.
However, Mrs McNeil had a bad fall in 2012. She was hospitalised and is now too
frail to care for Michelle. Mrs McNeil provided a supporting statement. The
circumstances of the accident are set out below:
“------Ms McNeil: No matter what sort of transport, it's too far away from my mother
and sister in an emergency.
Your mother's accident and her deterioration was raised on a number of occasions in
that questioning. What happened to your mother?---She was up at the gym training,
which my sister goes to also, and she - my sister actually fell over. Because she finds
it hard to coordinate and that, she - I think she was on a treadmill and my mum was
standing behind her and my sister's come off the treadmill and gone back onto my
mum and knocked my mum down. And she broke - a cracked pelvis and - cracked a
pelvis bone.”4
Mr McNeil is now the chief carer for Michelle.
Even before her accident Mrs McNeil would call Mr McNeil to come and assist her.
“......at that time my mum was still physically sort of okay to look after herself and take
care of my sister sometimes. My sister, because of her accident, gets aggressive
sometimes and sometimes my mother has to ring me to get - come down and calm her
down......”5
It is important for Mr McNeil to work close to home to enable him to care for his
mother and sister and to be close to home if there is an emergency, although
neighbours help.
“...... the neighbours would probably come and help if there was a problem when you
were at work?---Well I - because of the state - because of my sister, if anything
happened to my mother, my sister would absolutely panic and be totally out of control.
I guess the neighbour which is close, very close to their door, would hear what's going
on, and I guess they're nice sort of people. They would be concerned and try to find
out what was going on, because they would be aware of my sister's circumstance.
So the neighbours are still there to help out?---I think they might have changed now.”6
[3] Mr McNeil was cross-examined about what arrangements he would have made had he
moved to Coffs Harbour as he was considering doing in August 2012. His response was that
if he had moved he would have moved his mother and sister with him.7 He performs
approximately 7 hours 45 minutes overtime per week. His evidence was that he is still able to
care for his mother and sister.
[4] Mr McNeil was cross-examined about the occasions on which he had to care for his
sister. He has never had to leave work on the night shift but has been called away just before
work and has also had to take the night off on a couple of occasions because of problems with
his sister.8
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[5] Mr Reid put to Mr McNeil that he was more likely to have problems with his sister
during the day than at night time. He did not accept that proposition although he indicated
that he helped his mother and sister all the time during the day by taking them shopping,
paying the bills and doing the cleaning.9 He identified two occasions in February and March
2014 when he had taken carer’s leave.10
[6] Mr McNeil's evidence regarding his travel arrangements if he had to work at Ingleburn
is set out below:
“21. It is about a 40 minute drive from my house to the Ingleburn site. In peak hour
traffic, it is closer to an hour.
22. I am not comfortable driving that distance home after work. I work night shift,
and am very tired when I finish work. It is dangerous to drive in these circumstances.
23. I would have to drive up to Caringbah station and catch a train to Wolli Creek,
then change trains to Ingleburn. This would take at least an hour, if all the trains were
running on time.”11
[7] Mr McNeil's evidence regarding his meeting with Ms Bates and Mr Tsiakos is set out
below:
“25. I explained my personal circumstances as set out above. Kimberly said words to
the effect of:
Kimberley: ‘What would happen if something did happen while you were at work in
Ingleburn?’
Me: ‘If something happened to my mother, my sister would panic like you would not
believe. The neighbours would probably hear her and come over to help. If
something happened to my sister, I suppose my mum would be able to call the
ambulance.’
Kimberley: ‘You should get your mum an emergency pendant.’
Me: ‘It would take me that long to get home, I’m scared that if something did happen
that I wouldn’t be able to see them. I’d never forgive myself.’
Kimberly: ‘I wasn’t there when my mother passed.
26. At the end of the meeting, Kimberly said words to the effect of ‘Unfortunately, we
are not able to offer you a redundancy.’ I had the impression that this decision had
been made in advance.” 12
[8] Ms Bates was cross-examined regarding her meeting with Mr McNeil. She confirmed
that Mr McNeil raised his caring responsibilities for his elderly mother and disabled sister.
Ms Bates’ evidence was that, based on his circumstances, he was not entitled to redundancy.13
Ms Bates did not raise the September 2012 contract with Mr McNeil.14
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[9] In the course of the hearing there were a number of exchanges between the parties
that involved the use of a bus from Kogarah to Ingleburn. Mr McNeil's position was that he
would not catch the bus because of his mother and sister. His evidence is set out below:
“You were asked a question about the bus from Kogarah to Ingleburn and you said that
you wouldn't catch that bus. Do you remember that?---Yes.
Why wouldn't you catch that bus?---Because of my mother and sister. I just can't go to
Ingleburn. That's - it's not that I can't catch the bus. It's that I can't go to Ingleburn.
Why not?---No matter what sort of transport, it's too far away from my mother and
sister in an emergency.”15
[10] The travel allowance was not a matter of significance to Mr McNeil. The issue for
him was proximity to his mother and sister.
Stephen Perry
[11] Mr Perry provided a statement.16 Mr Perry is 64 years old. His evidence as to his
personal circumstances is set out below:
He has worked for Darrell Lea for 36 years.
He is on the day shift from 6:30am to 2:30pm.
He worked as the Hard Candy leading hand for 30 years. After Darrell Lea ceased to
have leading hands he worked in the marshmallow and peanut brittle areas.
He has suffered from a medical condition called Lebers Optic Atrophy since the age
of 16. He cannot drive a car. Whilst his eyesight does not prevent him from doing his
work, he needs strong reading glasses and is required to stand closer to machinery
than other employees. He provided a medical certificate dated 3 March 2014
confirming the diagnosis.
He loved his job and wished to keep working. For a while he was uncertain whether
he could move to Ingleburn but for the reasons set out below, and because of his
perceived difficulties in travelling to Ingleburn, he eventually decided he could not
move. His goal was to work until 2017. His evidence in this respect and concerning
his difficulties with travel was:
“18. In 1981, I moved to Raby with my wife and 3 year old son.
19. I spent the next 25 years travelling by train to work. It took me half an hour to
walk to the nearest train station, and two hours by train to get to work.
20. As I got older, I started finding the travelling on top of the long hours very
difficult.
21. Work is very important to me, and I wanted to keep going. My wife and I decided
to move, so I could keep working.
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22. This was a difficult decision for my wife, who had her life in Raby. The only
reason we moved was in order to allow me to keep working.
23. We moved to Como in 2006. This is much closer to Kogarah, and on the same
train line.
24. This significantly improved my quality of life. I do not believe I could go back to
travelling long distances again.”17
[12] Mr Perry’s evidence regarding his travel arrangements if he had to work at Ingleburn
is set out below:
“25. It will take me about four hours round trip to get to Ingleburn. Train timetables are
attached to this statement and marked ‘C’.
26. I believe that this travel, on top of my workload, will cause me significant
difficulties. It will cause me fatigue and affect my health, and cause me and my wife
stress.
27. My wife and I are not in a position to move house again.
28. I am worried that the travel time and the fatigue related issues will also affect my
work performance. I am also concerned about my ability to adjust to a new
workplace.
29. I do not think I will be as successful at Ingleburn as I have been at Kogarah. I do
not want to let the company down.
30. For a while, I was uncertain about whether I could move to Ingleburn. For the
reasons I have set out above, I do not believe that I can.”18
[13] Mr Perry was cross-examined about the time it would take him to get to Ingleburn by
public transport. Mr Perry took a rostered day off to time the trip to Ingleburn from his home.
His evidence in that respect is set out below. Mr Reid cross-examined Mr Perry about this
issue.
“Mr Reid: If you take public transport it would take you about 86 minutes to get to the
Ingleburn site?---Mr Perry: Not by the timetable, mate, that I know and - you could
know different. I would leave my house a quarter to five. I would be ready to start
work at 6.30. The train gets to Ingleburn station at 6 o'clock, then you walk the other
1.2 kilometres, and then dress for work. I'd be ready to start work by 6.30. That's an
hour and three-quarters. Coming home it's a little bit longer, mate. Finish at 2.30,
catch the 3.11 train from Ingleburn, because you would not catch the 3.41, be at Como
station at 4.27 and - now this is the public transport time, and that's the best that I could
do in travelling by public transport. And then walking up the street, so it would be just
over 2 hours coming home and an hour and three-quarters in the morning from the
time I walk out the door. Now it's not their fault I don't drive, but it's not my fault that
they're moving to Ingleburn either. And it's medical reasons why I don't drive and why
I have never driven, and there's a certificate there to state why.
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Have you ever taken public transport to Ingleburn?--- I did, mate, within the first three
weeks of going to - the company going over to Quinn, and I mentioned it to Kim. I
took an RDO and I trained it from Como to Wolli Creek, Wolli Creek to Ingleburn and
I walked virtually to the site. I just didn't cross the busy roundabout, so less than a
hundred metres from the site. And I did that in my own time.
I was hoping to take you to one more page in that document but if you can't read that I
can put it to you?---It would be appreciated, mate.
In that affidavit of Kim Bates at annexure KB6 this is what she says, "It's a two to
three minute walk from home to Como train station, 17 minutes from Como to
Kogarah".
MS SAUNDERS: Your Honour, this is going to be a complicated thing. Perhaps it
can be broken up so Mr Perry can address each block.
---
I'll address each component separately. Would you agree that it's a two to three
minute walk from home to Como train station?---No, mate. But it wouldn't be any
more than six or seven. It wouldn't be six, six or seven, but anyway no problem at all.
A 17 minute train from Como to Kogarah?---It's definitely no more than that.
A 15 minute walk from Kogarah train station to Kogarah plant?---Site. Yes, I'd say
20, but anyway. If you get off at Carlton it's probably closer to 15.
I'll now address the issue of Ingleburn. You say it's a six to seven minute walk from
home to Como train station?---Yes.
A 23 minute train from Como to Wolli Creek? 23 minutes?---I'm listening.
Is that correct?---I'm not denying anything, mate, but what I'm saying is - - -
I'm asking?---Thereabouts.
A wait for a connecting train to Ingleburn would be 10 minutes?---Well, you've got the
timetable there, mate. I've marked it.
I'm asking you. Approximately 10 minutes?---The train leaves Como at six minutes to
five. It's at Wolli Creek a bit after, so the Campbelltown train's 5.25, gets to Ingleburn
at 6 o'clock and then you've got to get from Ingleburn station to the site and be ready
to start at 6.30.
I haven't got there yet. I just was asking about the 10 minutes wait for a connecting
train to Ingleburn?
THE SENIOR DEPUTY PRESIDENT: Mr - - -
MR REID: What I'm trying to get to, your Honour - - -
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THE SENIOR DEPUTY PRESIDENT: Mr Reid, do you dispute the matters set out
in the timetable? Is that what you're doing here, because I don't want to confuse Mr
Steven.
MR REID: What I'm putting to Mr - what I'm putting to the witness is this is what's
in Kim's affidavit. He hasn't had a chance to respond to that affidavit.
THE SENIOR DEPUTY PRESIDENT: All right.
MR REID: I'm asking him whether he would agree with what's in Kim's affidavit. I
appreciate it might be tedious.
THE SENIOR DEPUTY PRESIDENT: No, no, it's just a question of making sure
that he understands the process.
Can you read the affidavit at all, or is it just difficult for you?---It is difficult, mate.
It'd take me all day, but I believe what the gentleman says.
All right, well what he wants to do is go through the affidavit and just put some facts
to you that Miss Bates says about the trip?---Yes.
So just deal with them one at a time, thank you Mr Reid. I think if you progress in the
way you are.
MR REID: I take it you agree with a 10 minute wait?---Mm'hm.
From then it's a 35 minute train from Wolli Creek to Ingleburn?---Yes.
And from there it would be a walk from Ingleburn train station to Ingleburn plant of
15 minutes?---Well, 1.2 kilometres. Yes, some people might do it in 15, 16 minutes,
mate. Yes. I'm not disputing that.
Okay, now what I say there, if you're not disputing that, is that it would take
86 minutes for you to get to Ingleburn?
MS SAUNDERS: Your Honour, that is not an accurate reflection of the evidence
that's just been given. There are some additional minutes in the walking time.
MR REID: Apologies.
MS SAUNDERS: The witness is - - -
MR REID: Approximately 90 minutes for you to get to Ingleburn. In your statement
you say - - -?---Definitely no less.
Sorry?---Going by the times that I've given, an hour and three-quarters, mate.
Well, in your statement you said two hours. What I put to you today is that it would
take an hour and a half and you've, as I understand it, agreed with that process?---
Well, I did it in an hour and a half. I missed the six minutes to five train, mate.
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Because I have - to get that connection at Wolli Creek I will have to catch the train
from Como at six minutes to five. So already before your start time you've got - so as
the start time's 5.30. That is 96 minutes. But then you've got to walk from the house
to the - which is only five or six minutes but you've got to catch a train to get there, if
you know what I mean? So you've got to be there. What - I don't govern what time
the trains leave, what time the trains meet. If you want to break down and find 86
minutes, if I left home 86 minutes before start time I would miss the train. I believe
so, mate. I'm not being difficult.
You'd miss the connecting train?---I would miss - because the six minutes to five is
not 96 minutes before my start time.
Right?---Is 96 minutes before my start time, then I walk out the door. Let's just call it
five minutes. So that's 101 minutes. You don't get 86 minutes out of that. So if I left
home 86 minutes before my start time, I'm sorry, I would probably get a warning for
being late because I would miss six minutes to five, then I would miss the 5.25 and
then I would not be at Ingleburn at 6 o'clock. And there's no way I could get to the
factory and in start position, dressed, ready to go in less than that half an hour. So that
half an hour to get from the station to work is required, and there's no trains that can
get me there on time.
Okay?---I'm going by the timetable, mate. Nothing more. I'd love to go to Ingleburn.
Now if you want to do the times coming home too - - -.”19
[14] I was satisfied by Mr Perry’s evidence that the trip from his home to Ingleburn by
public transport would take one hour and 45 minutes.
[15] When Mr Perry lived at Raby he travelled two and one half hours each way to work
for 25 years. Mr Reid put that issue and the prospect of a colleague driving him to and from
work to Mr Perry. That exchange is set out below:
“Mr Reid: Surely you could travel one hour and a half, one hour 45 minutes each way
for three years until 2017?---Mr Perry: And I've been giving that tremendous
consideration for the first 16 months and it's only the last perhaps six or eight weeks
the realisation that travelling perhaps may not be the one issue, and then felt
uncomfortable enough to think that maybe I've got to cut it short. And it's not what I
want to do. I sit here today and say it's not what I really want to do, but I feel as if
there's a need to and I wouldn't have put my name down. This is not a prank.
I thought travelling was your issue?---Travelling is one of the issues.
Do any of the employees you work with at Darrell Lea live anywhere near Como?
THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Reid, I didn't hear the end of
that question.
MR REID: I'm sorry.
Do any of the employees you work with live anywhere near Como?---There's one that
gives me a lift when I do early starts. He lives at Lucas Heights. If he was to pick me
[2014] FWC 4914
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up and drop me off it would increase his travelling time by 80 minutes a day because
he lives between my - between Como and Ingleburn. He lives between. He would
have to come back 20 minutes to get to where he started 40 - so from that aspect it's
not practical as far as this guy goes.
So you've asked him?---No, I haven't. He's asked me. I have not - I would not ask
someone to go out of their way for me, mate. He has asked me.
How often do you travel with him to work?---Lately not very often at all. On a regular
basis, going home, nearly every day because he has to pass my place or pass my area
to go home. So I give him petrol money. So - but I don't come in with him. Even if
we both start the - only when we do overtime and there's no trains and no buses we
organise a lift. Whenever I do a standard 6.30 start I come in by train every time, and
that's not an issue mate.
He's going to Ingleburn, this employee?---He is. But please, Mr Reid, keep in mind
- - -
THE SENIOR DEPUTY PRESIDENT: No, look, one moment. We've just got to do
the question and answer so we'll stop there.
MR REID: So if you said to him could he continue to help you with your travelling
arrangements he's likely to say, "Yes" isn't he?
MS SAUNDERS: Your Honour, Mr Perry is not in a position to answer a question
about someone else's mental state.
THE SENIOR DEPUTY PRESIDENT: Do you actually understand the situation
here? There's Ingleburn, there's Lucas Heights and there's Como. This person,
whoever he is, would have to do Lucas Heights, Como and then back this way. Is that
right, Miss Bates?
MS BATES: That's right.
THE SENIOR DEPUTY PRESIDENT: So that would be 20 Ks in the middle?
MS BATES: Yes.
THE WITNESS: 20 minutes each way.
THE SENIOR DEPUTY PRESIDENT: Yes, well 20 kilometres at least in the
middle. So that is the situation, Mr Reid. I'll just pass that to you. You know, you're
not necessarily familiar with this, as I'm not familiar with the Gold Coast. So I'll just
show it to you so that you're not confused by Mr Steven's answer in this respect.
MR REID: Thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: I think you can still put the question. I just
wanted to make sure you understood what the distance involved was.
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MR REID: I'll repeat the question. Isn't it so that if you asked - - -
MS SAUNDERS: I repeat your objection - my objection.
THE SENIOR DEPUTY PRESIDENT: Yes, I'm going to allow him to ask the
question.
MR REID: Isn't it so that if you asked the employee to assist you with travelling to
Ingleburn he would say, "Yes"?---I haven't asked him.”20
[16] Mr Reid also asked Mr Perry about selling or renting his house. His response is set
out below:
“THE SENIOR DEPUTY PRESIDENT: Yes, of course. No one expects you to do
any differently?---Mate, if I took - to keep working I would do it. I couldn't do it to
my wife, the turmoil that it'd cause, and I couldn't do it to a 19 year old son. We
moved him at a particular time, one boy at home. It would turn their life upside down
because of the - they did one move for me, but we tried to strategically do it. So the
young bloke's at school. Can't do it again.”21
[17] Mr Perry gave evidence that he might have considered travelling by bus from Kogarah
to Ingleburn were it not for other matters. Those issues included his concerns about being
able to do the work in the new situation.
[18] Mr Perry met with Ms Bates in February 2014. He provided her with a letter setting
out his reasons for not wishing to move to Ingleburn. She said to him words to the effect of
"As you must understand, we won't be offering anyone redundancy."
[19] Ms Bates was cross-examined regarding her meeting with Mr Perry.22 Mr Perry
discussed DLE’s need for him at Ingleburn and he asked questions about the Ingleburn site.
Ms Bates confirmed that Mr Perry was concerned about potential changes to his day to day
work. He was worried that he would have difficulty adjusting to a new factory layout and
equipment. He provided a letter to Ms Bates about his travel concerns. Her evidence was that
she did not advise Mr Perry of any conclusion regarding his entitlement to a redundancy
payment. She did not raise the September 2012 contract with Mr Perry.23
Joseph Atalifo
[20] Mr Atalifo provided a statement.24 Mr Atalifo is 43 years old. His evidence as to his
personal circumstances is set out below:
His first language is Rotuman.
He has worked at Darrell Lea for 13 years.
He worked in the licorice department at Kogarah on the night shift from 10:30pm to
6:30am.
It took Mr Atalifo 5 minutes to drive from his home at Sans Souci to work.
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He has two adopted sons who are 18 years old and live with him. He drops them off
and picks them up from school. He does not own a car and therefore he has made the
following arrangement with a housemate:
“13. I pick up my sons and drop them off at school.
14. I borrow my housemate’s car to go to work. We have an arrangement where on
Thursday:
a. I finish at 6.30 and drive home;
b. At 6.45 I drive my housemate to Lindfield, where she cares for her granddaughter;
c. I drive her to drop her granddaughter to school;
d. I sleep at Lindfield;
e. I drive her to school at 3 pm to pick up her granddaughter;
f. I drive her to her sons’s place, where she stays;
g. I drive home to Sans Souci, and then to work.
15. I drive out to Lindfield to transport my housemate back and forward between the
school each day that I am working, and bring her back home on Friday.
16. My housemate does not like to drive, as she has vision problems and other medical
issues. This arrangement is the only way she can get her granddaughter to school.
------
18. If I cannot drive her to Lindfield and back and from her granddaughter’s school,
my housemate will not lend me her car to get to work.
19. I cannot afford to buy a car. Rent, living expenses and school fees take up my
income.”25
[21] Mr Reid cross-examined Mr Atilifo concerning his household expenses, the cost of a
vehicle and other matters of a personal nature concerning his income and expenses.
[22] In cross-examination Mr Atilifo confirmed that the arrangement he has with his
flatmate regarding the loan of her motor vehicle has been in place for approximately 8 years.26
Mr Atilifo's flatmate is 62, her granddaughter is 3. His flatmate’s parents assist on Mondays
and Tuesdays. The purpose of the arrangement he has with his flatmate is to assist him to get
to work and his children to school.
[23] Mr Atalifo’s evidence regarding his travel arrangements if he had to work at Ingleburn
is set out below.
“17. It is about a forty minute drive from my house to the Ingleburn site on the M5, if
there is no traffic. This means that this arrangement will not work any more.
------
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20. I will have to catch public transport to work. This involves catching a bus from
Sans Souci to Rockdale, then a train from Rockdale to Wolli Creek, then a train from
Wolli Creek to Ingleburn.
21. This would take me two and a half hours.
22. I am very concerned about this travel time. It is a significant change for me, and
will place pressure on me and my family.”27
[24] Mr Atalifo met with Ms Bates and Mr Tsiakos in February 2014. Ms Bates told him
words to the effect of "No, that's not good enough." He said that they did not understand his
travel arrangements and accused him of lying about not owning a car. Ms Bates said, "We
will not be able to offer you redundancy."
[25] Ms Bates was cross-examined regarding her meeting with Mr Atalifo. She confirmed
that Mr Atalifo was advised that he was not entitled to a redundancy based on his
circumstances.28 She did not raise the September 2012 contract with Mr Atalifo.29
Blagoja(Bill) Stueski
[26] Mr Stueski provided a statement.30 Mr Stueski is 56 years old. His evidence as to his
personal circumstances is set out below:
English is not his first language.
He has worked at Darrell Lea for 33 years. He liked his job and the company. He
would have preferred to work there for as long as he was physically able to do so. He
has worked in a range of departments including chocolate and licorice and at the time
of the hearing he was working on the Erikson machine.
He lives at Bexley and it takes him 10 minutes to drive from Bexley to the Kogarah
site.
He is the primary caregiver for his mother-in-law Mrs Mickovska. She is 79 years
old, in poor health and lives at Rockdale which is a 5 to 10 minute drive from
Kogarah. He provided a medical certificate in relation to his care of Mrs Mickovska,
the substance of which is as follows:
“This is to confirm that Mr Blagoja Stueski is the son-in-law of a patient of mine,
Srmena Mickovska, who has been attending our clinic for over 7 years. She has been
becoming increasingly frail over the past couple of years and requires regular
assistance from her family and primarily from Blagoja himself. This includes but is
not limited to, driving Srmena to the shops and doctors appointments, assistance with
giving her medications, home maintenance etc. I understand he is working at Darrel
Lea which is considering a transfer of the factory to another more distant location
which will impact on Srmena’s well being and general provision of care.”31
He needs to be close to Rockdale in case there is an emergency. He provided, as an
example, the details of an emergency which occurred in 2011.
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He also relied upon his prospective family responsibilities for the care of a grandchild.
[27] Mr Stueski’s evidence regarding his travel arrangements if he had to work at Ingleburn
is set out below:
“10. Last year, I went fishing in Moss Vale with my sons on Sunday. When we drove
back at night, we passed Ingleburn. I timed the drive home, and it took about 50
minutes. There was no traffic.
11. I have never driven that far for work. I believe it will be very hard for me to make
this trip, and will put pressure on me and my family.32
[28] Ms Bates confirmed that Mr Stueski and she met to discuss his application for a
redundancy payment. She did not raise the September 2012 contract with Mr Stueski.
“Ms Saunders: I apologise, you met with Bill Stueski?---Ms Bates: I did meet with Bill
Stueski. He had submitted a letter by email that went to SPAM, and after we had
conducted a number of meetings he said, "Where's mine?" and I said I had no idea.
We found it and then later on we did meet, yes.
Okay, and Mr Stueski cares for his elderly mother-in-law?---Yes.
And again, Mr Stueski is an older worker himself?---Correct.
Who has 36 years' service with Darrell Lea?---Something like that, yes.
And lives very close by to the Kogarah site? ---Yes.
Did you raise Mr Stueski's 2012 contract with him?---No.”33
[29] The travel allowance was not a significant issue for Mr Stueski. It was the distance
from his home and his responsibilities in that location which were critical for Mr Stueski.
[30] Mr Reid cross-examined Mr Stueski about the possibility of other persons assisting
his mother-in-law. Her husband has been dead for many years. Mr Stueski gave evidence
that he takes her everywhere, cuts the grass, paints for her and fixes things. He takes her to
the shops and doctors appointments. She does not drive. His evidence is that he and his wife
share the responsibility but he is there 2 to 3 hours per week. His wife does not have set
shifts. She is permanent but her shifts vary. She works at Aldi. All the family helps but he is
the chief provider of care. Sometimes he takes her out on Mondays, sometimes Wednesdays,
sometimes Saturdays. As soon as she calls he goes. He was asked about one particular
occasion on which he was required for an emergency trip to the hospital after a fall. He was
called at work, went to her home and called the ambulance and visited her in hospital. Her
right hand was broken.
Blaga Mirceska
[31] Ms Mirceska provided a statement.34 Ms Mirceska is 51 years old. Her evidence as to
her personal circumstances is set out below:
[2014] FWC 4914
14
English is not her first language.
She works the day shift from 6:30am to 2:30pm.
She has worked at Darrell Lea for 26 years. She commenced when she first moved to
Australia. She lives at Kogarah.
She does not hold a drivers licence or own a car. Her evidence in relation to this issue
is as follows:
“14. I do not hold a drivers’ licence or own a car. I used to drive, but I had an accident
in 1999.
15. A pedestrian jumped in front of me and I hit him. I suffered shock and trauma. I
have never driven since, and do not think I will ever drive again.
......
22. I am nervous to catch public transport. I have felt this way since the accident in
1999. I keep compulsively braking and feeling like something bad is going to happen.
I have never been alone on a train or a bus since the accident.”35
At present her husband drives her to work. He works at Botany and her workplace is
on his way to work. He starts at 7am and finishes at 3pm.
[32] Mrs Mirceska’s evidence regarding her travel arrangements if she had to work at
Ingleburn is set out below. In regard to her evidence of travel time it was clear that Mrs
Mirceska had no basis for her estimates. She had no personal knowledge of the travel time
from Kogarah to Ingleburn.
“17. It is about a 30 minute drive to Ingleburn from my house. It is out of my husband’s
way.
18. Ingleburn is approximately 30 minutes drive from Botany, in no traffic. In peak
hour, it will take longer.
19. I have discussed with my husband the prospect of him driving me to Ingleburn.
Because of how much earlier he has to get up, and the stress of the extra driving, he
has told me that he will not be able to do it.
20. Because I finish earlier than my husband, I walk home from work. This takes me
about 20 minutes.
21. I would have to catch public transport to get to Ingleburn. I would have to get a
train from Kogarah to Wolli Creek, and then from Wolli Creek to Ingleburn. This
would take an hour and a half each way, if the trains were running correctly.
......
[2014] FWC 4914
15
23. I am also afraid for my safety walking from Ingleburn station to the new site. It is
an industrial area, and I will be travelling alone. I have been told that the area is not
very safe.”36
[33] Mrs Mirceska had a meeting with Ms Bates in late 2013. Ms Bates asked if Mrs
Mirceska was going to go to Ingleburn. She said she would not. She told Ms Bates, "I can't
travel. I don't drive a car and my husband can't drive me there." Ms Bates responded, "If you
don't want to go, you don't want to go."37
[34] In March 2014 Mrs Mirceska provided Ms Bates with a letter setting out the reasons
she could not go to Ingleburn. Ms Bates responded that, "It's not the travelling, it's because
you don't want to go. Don't think you'll get redundancy for nothing." Mrs Mirceska
responded, "It’s not for nothing, I'm just fighting for my rights."38 She then provided Ms
Bates with a letter setting out her reasons for refusing to go to Ingleburn.39
Paul Gioffre
[35] Mr Gioffre provided a statement.40 Mr Gioffre is 45 years old. His evidence as to his
personal circumstances is set out below:
He has worked at Darrell Lea for 12 years.
He presently lives 800 metres from the Kogarah worksite. He only drives when it is
raining.
He works on the day shift from 6:30am to 2:30pm.
Mr Gioffre is the carer for his mother. His evidence in this regard is set out below:
“17. In September 2001, my father passed away. My mother was in hospital with
breast cancer at the same time.
18. At this time, I was working at Players Biscuits in Caringbah. I decided to leave
and spend time looking after my mother.
19. I cared for my mother full-time for about six months. I then started looking for a
job locally.
20. I applied at Darrel (sic) Lea because of its close location. At the time they were
advertising for seasonal workers.
21. I got the job, and was made permanent shortly after that.
22. My mother is 83 years old. She has many health problems, and regularly needs to
see her doctor, cardiologist, renal physician and ophthalmologist. I take her to these
appointments.
23. A letter from my mother is attached and marked ‘B’.
24. I am the only person in my family that drives. I need to be near my mother in case
she has an emergency.
[2014] FWC 4914
16
25. My mother has occasionally needed my help during work hours. I remember an
occasion about two years ago where her doctor called me during work hours asking
me to pick my mother up and take her to the hospital, as her blood pressure was very
high, I had to leave work straight away.
26. On another occasion in early 2013, I rang my mother during my lunch break. She
was unwell, and I needed to take personal leave to take her to the doctor.
27. It is about forty minutes drive to Ingleburn from my house in no traffic. I have
personally experienced traffic on the M5 that would make this journey longer.
28. If I am working in Ingleburn, I will not be close enough to respond if my mother
has an emergency. My responsibilities to her prevent me from accepting this offer.
29. We have lived in this house since 1955. We cannot afford to move, and I believe
it would distress my mother.
30. I also have a fourteen year old daughter. I have to pick her up for sporting events
and orthodontist appointments.
31. My wife does not drive. She works part time as a casual at Darrel Lea. She relies
on me to drive her around.
32. The additional travel time would also increase my petrol costs, and cause wear and
tear on my car. I believe that this new travel time would cause me stress and put
pressure on my family.”41
[36] Mr Gioffre was cross-examined regarding his family arrangements. He confirmed that
his wife worked an average of 38 hours per week for Darrell Lea. She has also worked for the
last nine years part-time 18 hours per week at a plastics factory.42
[37] Mr Gioffre provided details of his obligations in relation to school and other sports
which include oz-tag and soccer. He also takes his daughter to regular fortnightly
orthodontist appointments.43
[38] Mr Gioffre’s evidence regarding his travel arrangements if he had to work at Ingleburn
was that it would take him 38 minutes on average each way if there was no traffic.44
[39] Mr Gioffre’s evidence regarding his care of his mother was that her condition is
unpredictable and that she requires his personal attendance because of her cultural
background. He referred to two occasions on which he had to leave work to assist his mother.
His evidence was that his wife would have difficulty looking after his mother because of her
variable work commitments. Also, English is not her first language.45
[40] Mr Gioffre's evidence regarding his meeting with Ms Bates is set out below:
“34. I gave Kimberly a letter on Friday 10 January, setting out the reasons I have given
in his statement.
[2014] FWC 4914
17
35. In late February, I had a meeting with Kimberly Bates and Jim Tsiakos. We had a
conversation to the following effect:
Kimberly: ‘I have a copy of the reasons why you can’t go. You’ve got here that you
need to take your mum to doctor’s appointments and she’s not well. You can get
government assistance with community health nurses, why don’t you do that?’
Me: ‘She’s not an invalid. My mum being an Italian, she will not let any strangers
help her out like that. I have asked her before, and she got quite.’ (sic)
Jim: ‘So, the reason you can’t go Paul, is that you’re only two minutes away now so
you can get there quickly if there’s an emergency, but if you’re in Ingleburn, you’re an
extra 35 minutes away.’
Me: ‘Yes, that’s the reason. That’s 35 minutes if there’s no traffic. Also, if there’s an
emergency, and I’m driving in a panic, that’s not very good.’
Kimberly: ‘We have to prepare things for the commission. Whatever happens, you
will still have a job at Ingleburn.’”46
[41] Ms Bates was cross-examined regarding her meeting with Mr Gioffre.47 She
confirmed that he had provided her with the details of his carer responsibities and she
acknowledged that it was important to him to be close to his mother in case of an emergency.
She was shown his sick leave record which demonstrated a number of absences for family
leave. She confirmed that she told Mr Gioffre that DLE did not accept that he was entitled to a
redundancy payment based on his personal circumstances. She did not raise the September
2012 contract with Mr Gioffre.48
Conclusion
[42] Ms Saunders submitted that location was an implied or express term of the contract of
employment for these employees. As an indicative example she referred to the contract of
employment of Grace Famiglietti, one of the members whose application was discontinued, in
which the only address for employment was Kogarah.49 She submitted that by attempting a
unilateral variation of the contract of employment without a pre-existing contractual term
allowing for such a variation, DLE had repudiated the existing contract of employment.
“Ms Saunders: ......By closing the factory and moving the operations to Ingleburn, the
employer is unilaterally varying the contract. Employees can elect to accept the
repudiation that arises. If they do, their employment has terminated at Darrell Lea’s
initiative. The reason for the termination is of course redundancy as the employer has
decided that it no longer wants the jobs, the whole jobs, including the location of the
job, to be done by anyone.”50
[43] I am satisfied that the closure of the Kogarah Darrell Lea site meant that the work that
had been performed to date by the Kogarah employees was no longer required to be done by
anyone. The employees at Kogarah were contracted to perform confectionery work at
Kogarah. The only confectionery work ever performed by employees of Darrell Lea was
performed at Kogarah. Ingleburn had always been exclusively a warehouse site. The Kogarah
[2014] FWC 4914
18
site was being closed and all Kogarah functions were to be performed at Ingleburn. I am
satisfied that the closure of the Kogarah site created redundancies.
[44] Pursuant to clause 6 of the DLE Agreement DLE was required to consult concerning
redundancies. I am satisfied and find that DLE did not consult concerning redundancies as
required by the DLE Agreement. Neither Mr Tsiakos nor Ms Bates revealed to any employee
they interviewed, that it was DLE’s position that the September 2012 contracts were a total
answer to any claim for redundancy. It was an issue DLE kept entirely in reserve. Ms Bates’
evidence regarding her meetings with employees was inconsistent. Was she enquiring as to
the claims of each employee to ascertain whether the circumstances of each was sufficient to
justify a redundancy payment, or was she enquiring into the claims of each employee to
ascertain if anything could be done to ensure their transfer to Ingleburn? I am not satisfied
that she knew the answer to that question at the time she interviewed the employees. In any
event, Ms Bates gathered information for DLE and provided it to Mr Quinn from whom I did
not hear any evidence. He was the decision maker in relation to the payment or non-payment
of redundancy entitlements.51 I am satisfied that there was no consideration of the personal
circumstances of any employee when considering Ingleburn as an offer of reasonable
alternative employment. I am satisfied and find that DLE had already decided that the
contract offered and accepted in September 2012 was a total answer to any such application.
[45] The remaining question for consideration by me was whether the offer of employment
at Ingleburn was a reasonable offer of alternative employment in light of the circumstances
affecting each employee.
[46] The proposal to move to Ingleburn was made on the basis of a $70 per week travel
allowance. The original proposal had been made on the basis that this travel allowance was
paid for 12 months. At the time of hearing that proposal had become an offer of a permanent
$70 per week travel allowance. I have taken into account the payment of a travel allowance
to employees who were offered work at Ingleburn. Although I was not satisfied that the $70
per week travel allowance represented a full reimbursement of expenses, I did not consider
the payment of the allowance to be significant in my consideration of the issue before me. The
cost of travel was not a factor that affected the decision-making of the employees who
decided that work at Ingleburn was not a reasonable offer of alternative employment.
[47] Distance and the consequent additional travel time were however significant factors in
relation to all six employees who were the subject of my Findings and Orders. It was
necessary for me to make a finding concerning the travel time from Kogarah to Ingleburn.
This issue was a constant theme in the evidence and submissions of the parties. The evidence
varied. I was supplied with screenshots from Google Maps and Transport Infoline, the State
Government public transport website. Ms Saunders provided journey plans between Kogarah
and Ingleburn and the evidence addressed the various alternatives from a journey made in
heaven to worst case scenarios.52 I do not intend to repeat all the submissions, estimates of
and guesses about travel time provided to me regarding travel time between Kogarah and
Ingleburn and back again at various times of the day. I am satisfied and find that the travel
time from west to east in the morning from Ingleburn to Kogarah is often the equivalent of
sitting in a slow moving car park queue. I am satisfied and find that, at some times in a day,
going in either direction, it can take well in excess of an hour and fifteen minutes to travel
between those destinations. I am satisfied and find that an average journey can take between
40 and 55 minutes each way. I am satisfied and find that a perfect trip without excess traffic
can take 38 - 40 minutes.
[2014] FWC 4914
19
[48] During the course of the hearing before me negotiations took place between the
Australian Manufacturing Workers’ Union (AMWU) and DLE. There were various offers,
and then responses, which were the subject of further negotiations. Some of the offers were
put in writing. In relation to one such offer Mr Reid sought to cross-examine. Those offers
included the provision of a bus service from Kogarah to Ingleburn for dayshift employees
only and, if the bus service was used, it precluded the payment of the travel allowance. The
offer was conditional upon withdrawal from the proceedings before me.53
[49] On the date that cross-examination was sought on this issue Mrs Mirceska had not had
an opportunity to read the offer, although discussions had taken place between DLE and the
AMWU. I determined that I would only hear evidence and allow cross-examination
concerning offers that were still open when the hearing proceeded.54
[50] I did not consider that the offer of transport for dayshift workers transformed the offer
of employment at Ingleburn into a reasonable offer of alternative employment. The three
employees on night shift would have had to transfer to dayshift, at a considerable reduction in
wages, to take advantage of the offer. Ms Bates confirmed that the difference in wages was
$312 gross per week.55 All six employees would still have had to travel from their homes to
Kogarah and then by bus from Kogarah to Ingleburn twice a day. I was satisfied that the time
involved in travelling by bus from Kogarah to Ingleburn was, for all the relevant employees,
excessive. This was particularly so for those employees who do not live close to Kogarah. I
was satisfied that the move to Ingleburn involved significantly increased travel time for each
of the relevant employees, although this was less of a factor for Mr Stueski. That finding was
not, in the circumstances surrounding these employees, ameliorated by the terms of the offer
of transport made by DLE in the course of the proceedings before me.
Mr McNeil
[51] I accepted Mr McNeil's evidence concerning his personal circumstances and his
difficulties in travelling to Ingleburn. In relation to Mr McNeil I was satisfied and found that
DLE's offer of alternative employment at Ingleburn was not a reasonable offer of alternative
employment as contemplated by the DLE Agreement because of the personal circumstances
of Mr McNeil involving the care of his mother and disabled sister and the additional burden
of travel involved in the proposed move from Kogarah to Ingleburn.
Mr Perry
[52] I accepted Mr Perry's evidence concerning his personal circumstances and his
difficulties in travelling to Ingleburn. In relation to Mr Perry I was satisfied and found that
DLE's offer of alternative employment at Ingleburn was not a reasonable offer of alternative
employment as contemplated by the DLE Agreement because of the personal circumstances
of Mr Perry involving his health issues, his familiarity with his present work at Kogarah and
his apprehension of changes to that work at Ingleburn, and the additional burden of travel
involved in the proposed move from Kogarah to Ingleburn.
Mr Atalifo
[53] I accepted Mr Atalifo's evidence concerning his personal circumstances and
difficulties in travelling to Ingleburn. In relation to Mr Atalifo I was satisfied and found that
[2014] FWC 4914
20
DLE’s offer of alternative employment at Ingleburn was not a reasonable offer of alternative
employment as contemplated by the DLE Agreement because of the personal circumstances
of Mr Atalifo involving his household arrangements for the care of his children, his financial
arrangements and inability to travel by motor vehicle as a result of both of these factors, and
the additional burden of travel involved in the proposed move from Kogarah to Ingleburn.
Mr Stueski
[54] I accepted Mr Stueski’s evidence concerning his personal circumstances and
difficulties in travelling to Ingleburn. In relation to Mr Stueski I was satisfied and found that
DLE's offer of alternative employment at Ingleburn was not a reasonable offer of alternative
employment as contemplated by the DLE Agreement because of the personal circumstances
of Mr Stueski involving his carer responsibilities in relation to his mother-in-law, Mrs
Mickovska , and the additional burden of travel involved in the proposed move from Kogarah
to Ingleburn.
Mrs Mirceska
[55] I accepted Mrs Mirceska’s evidence concerning her personal circumstances and
difficulties in travelling to Ingleburn. In relation to Mrs Mirceska I was satisfied and found
that DLE's offer of alternative employment at Ingleburn was not a reasonable offer of
alternative employment as contemplated by the DLE Agreement because of the personal
circumstances of Mrs Mirceska involving her inability to drive a motor vehicle, her
difficulties in relation to public transport arising from the past motor vehicle accident, and the
additional burden of travel involved in the proposed move from Kogarah to Ingleburn.
Mr Gioffre
[56] I accepted Mr Gioffre’s evidence concerning his personal circumstances and
difficulties in travelling to Ingleburn. In relation to Mr Gioffre I was satisfied and found that
DLE’s offer of alternative employment at Ingleburn was not a reasonable offer of alternative
employment as contemplated by the DLE Agreement because of the personal circumstances
of Mr Gioffre involving his carer responsibilities in relation to his mother, his family
responsibilities arising from his wife's employment arrangements and his obligations in
relation to his daughter, and the additional burden of travel involved in the proposed move
from Kogarah to Ingleburn.
[2014] FWC 4914
21
[57] I considered the circumstances of each of these employees and decided that DLE no
longer required their jobs to be done by anyone, that the offer of employment at Ingleburn
was not a reasonable offer of alternative employment and that they were entitled to a
redundancy payment pursuant to the DLE Agreement.
SENIOR DEPUTY PRESIDENT
Appearances:
L. Saunders appearing on behalf of the Applicant
P. Reid appearing on behalf of the Respondent
Printed by authority of the Commonwealth Government Printer
Price code F, PR553398
1 PR551926
2 PR551926 at para 55
3 Exhibit AMWU 2
4 Transcript PN585 - PN586
5 Transcript PN534
6 Transcript PN540 - PN541
7 Transcript PN535 - he was asked about his level of overtime
8 Transcript PN547
9 Transcript PN550
10 Transcript PN568 - PN571
11 Exhibit AMWU 2 paras 21 - 23
1212 Exhibit AMWU 2 paras 25 - 26
13 Transcript PN247
14 Transcript PN302
15 Transcript PN581 - PN584
16 Exhibit AMWU 3
17 Exhibit AMWU 3 paras 18 - 24
SEAL OF FAIR THE AUSTRA ORK COMMISSION
[2014] FWC 4914
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18 Exhibit AMWU 3 paras 25 - 30
19 Transcript PN674 - PN714
20 Transcript PN755 - PN778
21 Transcript PN790
22 Transcript PN257 - PN267
23 Transcript PN300
24 Exhibit AMWU 5
25 Exhibit AMWU 5 paras 13 - 16, 18 - 19
26 Transcript PN1144 - PN1145
27 Exhibit AMWU 5 paras 17, 20 - 22
28 Transcript PN255
29 Transcript PN301
30 Exhibit AMWU 6
31 Exhibit AMWU 6 Attachment A
32 Exhibit AMWU 6 paras 10 - 11
33 Transcript PN303 - PN308
34 Exhibit AMWU 9
35 Exhibit AMWU 9 paras 14 - 15, 22
36 Exhibit AMWU 9 paras 17 - 21, 23
37 Exhibit AMWU 9 para 24
38 Exhibit AMWU 9 para 25
39 Exhibit AMWU 9 Attachment B
40 Exhibit AMWU 10
41 Exhibit AMWU 10 paras 17 -32
42 Transcript PN2131 - PN2137
43 Transcript PN2140 - PN2159
44 Transcript PN2120
45 Transcript PN2160 - PN2173
46 Exhibit AMWU 10 paras 34 - 35
47 Transcript PN274 - PN291
48 Transcript PN298
49 Exhibit DL Employment 1 Attachment 11
50 Transcript PN3317
51 Transcript PN314 - PN328
52 Transcript PN3338 and following
53 Exhibit DL Employment 2
54 Transcript PN1812
55 Transcript PN3572 - PN3573
