1
Fair Work Act 2009
s.604—Appeal of decision
Nick Tsiftelidis
v
Crown Melbourne Limited
(C2016/3380)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CIRKOVIC
BRISBANE, 25 JULY 2016
Appeal against decision [[2016] FWC 1689] and Order PR578345 of Commissioner Cribb at
Melbourne on 24 March 2016 in matter number U2015/5662.
[1] Crown Melbourne Limited (Respondent) had employed Mr Nick Tsiftelidis
(Appellant) for approximately eight and a half years until 12 May 2015 when it dismissed him
on redundancy grounds. In his employment with the Respondent, the Appellant was covered
by the Crown Melbourne Enterprise Agreement 2013 (Agreement). On 24 March 2016
Commissioner Cribb issued a decision1 (Decision) which concluded that the Appellant’s
dismissal was a case of genuine redundancy within the meaning of s.389 of the Fair Work Act
2009 (Cth)2 (FW Act) and dismissed the Appellant’s application for a remedy for an unfair
dismissal by order (Order).3
[2] The Appellant sought permission to appeal the Commissioner’s Decision and Order.
The issue of permission to appeal was heard by a Full Bench of the Commission and on 2
June 2016 that Full Bench issued a decision which granted permission to appeal.4 With
permission to appeal having been granted, the determination of the merits of the appeal is the
matter before us.
The Hearing
[3] At the hearing on 12 July 2016, the Appellant was self-represented and did not object5
to permission to appear being granted to Mr M. Tamvakologos on behalf of the Respondent.
In light of this, and having regard to s.596 of the FW Act and the relevant authorities,
permission to appear was granted.
[4] While the Appellant did not oppose permission to appear being granted to Mr
Tamvakologos, he expressed concern6 about the presence and involvement of Mr M. Brennan,
the solicitor assisting Mr Tamvakologos. The Appellant elaborated to say that he was
concerned that Mr Brennan has had a professional relationship and/or done professional work
[2016] FWCFB 4675
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 4675
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with Commissioner Cirkovic in the past.7 Mr Tamvakologos offered to have Mr Brennan
excuse himself from the hearing room to allay any concerns.8 The Appellant did not respond
to this offer.
[5] The Appellant was informed that Mr Brennan was Commissioner Cirkovic’s associate
for a short period.9 The Appellant asked us whether we thought that this constituted a conflict
of interest.10 We asked the Appellant whether he wished to make an application outlining
what he perceived to be a conflict of interest in this case.11 The Appellant did not make such
an application before us and instead indicated that he will take the matter to the Federal
Court.12 The Appellant said that he was not withdrawing his appeal13 and proceeded to leave
the hearing room.
[6] After the Appellant left the hearing room, Mr Tamvakologos confirmed that
Commissioner Cirkovic was not involved in this matter while Mr Brennan was her associate.
Mr Tamvakologos said that in light of this, and on the basis that Mr Brennan no longer has
any on-going role at the Commission, there is no reasonable apprehension of bias, real or
perceived.14 We note that Vice President Catanzariti and Commissioner Cirkovic were both
members of the Full Bench that granted permission to appeal to the Appellant.15 To ensure
that the Appellant was not deprived of natural justice16 by being absent from the hearing
room, Mr Tamvakologos said that the Respondent was content for us to rely on the written
material which included the witness statements of Ms Gleeson (exhibit A) and Ms Szalay
(exhibit B), the Respondent’s submissions (exhibit C) and the Appellant’s submissions
(exhibit 1).17
[7] On the basis that the Appellant did not withdraw his appeal or make an application
outlining what he perceived to be a conflict of interest or make any other application, we have
proceeded to hear the appeal based on the written submissions filed by both parties and our
findings are provided below.
The Appeal
[8] Clauses 24 and 33 of the Agreement, which prescribe consultation obligations and are
enlivened in certain circumstances, were at the centre of the appeal. The appeal concerned
whether the Respondent had complied with its consultation obligations in relation to the
dismissal of the Appellant. At first instance, the Commissioner found that clause 24 of the
Agreement, which deals with consultation with regards to major changes in operations, had
no application in the circumstances of the Appellant’s dismissal because clause 33 of the
Agreement deals with the Respondent’s consultation obligations in situations of individual
redundancies. The Commissioner said:
“[73] The Agreement contains two clauses which deal with consultation in relation to
redundancy – clauses 24 and 33. Clause 24 – Change Consultation - requires, amongst
other things, that the company is obliged to notify affected employees of major
changes, to discuss the changes and to mitigate the adverse effects of the change. The
second clause is clause 33 – Redundancy - and it provides that, prior to the redundancy
taking effect, the company shall consult with the relevant union.
[2016] FWCFB 4675
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[74] Section 389(1)(b) of the Act requires that the employer has complied with any
obligation in the Agreement (in this case) to consult about the redundancy. Clause 33
of the Agreement is quite specific in that it applies to redundancy and it states, at 33.3,
that:
“Prior to redundancies taking effect, the company shall consult with the relevant
union as required by the Act in each circumstance to determine alternatives to
redundancy. Where practical, the company will consider volunteers for
redundancy before implementing forced redundancies.”
[75] On the other hand, clause 24 is a general clause which requires the company to
notify, discuss and mitigate major changes in production, programs, organisation etc.
[76] It is an accepted principle of statutory interpretation that, when there is more than
one clause which covers the same field, it is the more specific clause, rather than the
general clause, which is applicable. Therefore, as clause 33 is specifically concerned
about redundancy and contains a requirement to consult, the obligation on the
employer was to consult in accordance with clause 33 of the Agreement.”18
[9] At the heart of the appeal is whether clause 24 and 33 of the Agreement were
construed and applied correctly by the Commissioner.
Appellant’s Submissions
[10] The Appellant submitted that there were significant errors with regards to clause 24
and 33 of the Agreement throughout the Decision. The Appellant contended19 that the
Commissioner’s failure to consider the following evidence contributed to these alleged errors:
The Commendation Letter from the General Manager of the Respondent; and
The Deed of Settlement.
[11] The Appellant referred to the Respondent’s contention that the employment
relationship of trust and confidence had broken down and submitted that the Commissioner
should have realised that:
The Respondent was not going to find redeployment for the Appellant;
The Appellant was not going to be given the opportunity to be consulted;
The new positions of employment in the Respondent’s workplace were not going to
be proposed to the Appellant; and
The Respondent promoted fear tactics in the workplace.20
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[12] The Appellant posited that the Commissioner did not consider whether his dismissal
was harsh, unjust or unreasonable and that the following points were also not considered:
The Respondent did not explain why the duties of the Sports Consultant were no
longer required;
The Appellant was not properly notified and was not given the opportunity to
respond;
The Appellant considers the real reason for his dismissal to be the complaint he had
made to the Respondent against his manager in November 2014 and submits that this
is not a valid reason for dismissal;
The Appellant had compiled over seven years of service with the Respondent and
maintained excellent interpersonal client relationships;
The Appellant was forced to sign a Deed of Settlement21;
The Appellant was searching for new employment22;
The Appellant commenced new employment as an Uber X Ride Sharing Driver23;
and
The Respondent changed its reasons for the Appellant’s redundancy on three
occasions.24
[13] The Appellant also contended that the evidence does not support the conclusion that
the Appellant’s position was redundant due to changes in the operation requirements of the
Respondent’s workplace. The Appellant posited that in her witness statement, Ms Momesso
revealed that the work required by the Respondent was not the same across the three hotels,
contrary to the evidence of Mr Schultz and Ms Stevens.25
[14] The Appellant submitted that the Commissioner was more interested in the
Appellant’s effort to find new employment than any effort on behalf of the Respondent to
prove that there was a genuine redundancy.26 The Appellant also submitted that the
Commissioner should have drawn further conclusions and suspicions from the evidence that
was provided by the Respondent regarding consultation with the relevant union. To support
this submission, the Appellant posited that the weight of the evidence favoured a conclusion
that the union had no idea of the discussions that were occurring.27 The Appellant questioned
the Commissioner’s finding that redeployment was unreasonable and submitted that he could
have been redeployed to the Spa Receptionist role.28
[15] In pages nine to twelve of the Appellant’s written submissions under the heading
“other relevant points”, the Appellant submitted that some of the individuals who were
involved in the decision to make the Sports Consultant position redundant did not give a
witness statement and were not involved with the case at first instance.29 The Appellant
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posited that throughout the case the Respondent has argued that it did not need to follow its
consultation obligations in clause 24 of the Agreement on the basis that the Appellant’s
redundancy was not a major change. The Appellant submitted that this is an inconsistent
approach from the Respondent on the basis that the Agreement and FW Act do not consider
numerical redundancies.30
[16] In light of the above submissions, the Appellant contended that reinstatement and
compensation should be ordered. The Appellant posited that it would be reasonable to
reinstate the Appellant on the basis that the Respondent has been inconsistent in its approach
to its claim that there was a genuine redundancy and has not followed its consultation
obligations.31
Respondent’s Submissions
[17] The Respondent submitted that clauses 24 and 33 of the Agreement have a different
scope and purpose, and that the consultation obligation contained in clause 33 applied in the
circumstances of the redundancy of the Appellant’s position, not clause 24. The Respondent
submitted that it discharged its consultation obligation contained in clause 33 of the
Agreement and met the obligation contained in s.389(1)(b) of the FW Act.
[18] In the alternative, the Respondent submitted that if both clauses 24 and 33 operated,
the obligation in clause 33 should prevail. The Respondent contended that the generalia
principle has been relied on in the Commission in construing both enterprise agreements and
awards. The Respondent contended that the generalia principle is a helpful interpretive aid
and leads to the result that only clause 33 of the Agreement applied.
[19] The Respondent also contended that pursuant to s.389(1)(a) of the FW Act, the
Respondent no longer required the Appellant’s job to be done by anyone because of changes
in operational requirements. Pursuant to s.389(2) of the FW Act, the Respondent posited that
it was not reasonable for it to redeploy the Appellant.
[20] In light of these submissions, the Respondent submitted that the appeal should be
dismissed.
Consideration
[21] In determining this appeal we have read and considered all of the material filed by the
parties including all of the submissions, correspondence and the relevant authorities. These
materials indicate that clauses 24 and 33 of the Agreement, and the consultation obligations
that they impose on the Respondent, are at the heart of the present dispute. The Appellant
contends that the Respondent did not meet its consultation obligations while the Respondent
contends that it did. The first part of our consideration deals with the Respondent’s
consultation obligations prescribed by clause 33. The second part of our consideration deals
with the Respondent’s consultation obligations prescribed by clause 24.
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Clause 33
[22] Clause 33 of the Agreement provides specific consultation obligations with regards to
redundancies. The clause says:
“33 Redundancy
33.1 Redundancy occurs where for genuine operational reasons an employee’s position
is no longer required.
33.2 The provisions of this clause are not applicable where the company arranges for
the employee to be offered alternative employment, either within the company or with
another employer, in circumstances where the offer of employment is such that:
33.2.1 the terms and conditions of the offered employment are on balance
substantially similar and no less favourable than the employee’s present terms
and conditions of employment with the company; and
33.2.2 in the event of a new employer, the employee’s period of continuous
services with the company will be recognised as continuous service with the
new employer.
33.3 Prior to redundancies taking effect, the company shall consult with the relevant
union as required by the Act in each circumstance to determine alternatives to
redundancy. Where practical, the company will consider volunteers for redundancy
before implementing forced redundancies.” (emphasis added)
[23] As seen in the above extract, subsection 3 of clause 33 requires the Respondent to
consult with the relevant Union to determine alternatives to redundancy. It follows that if this
consultation took place, the Respondent discharged its consultation obligations pursuant to
clause 33 of the Agreement.
[24] The Respondent contends32 that Mr S. Kemppi of United Voice was contacted and that
alternatives to the redundancy of the Appellant were discussed33 while the Appellant posits
that proper consultation did not occur.34 In a letter from United Voice to the Appellant dated 8
September 2015, United Voice acknowledges that the Respondent contacted Mr Kemppi to
consult with the Union regarding changes to the structure of a department and how these
changes may impact upon the Appellant’s employment.35 Therefore, United Voice
acknowledged that, as the Respondent contends, Mr Kemppi of United Voice was consulted
by the Respondent prior to the redundancy of the Appellant.
[25] Having considered the submissions of the parties and in light of United Voice
acknowledging the consultation between it and the Respondent, we accept the Respondent’s
contention that consultation pursuant to clause 33 occurred. We reject the Appellant’s
submission that clause 33 was not complied with as it does not follow the evidence revealed
in the letter from United Voice to the Appellant that there was no consultation. We are
[2016] FWCFB 4675
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satisfied that the weight of the evidence indicates that the required consultation occurred
between the Respondent and United Voice. As such, we are satisfied that the Respondent
complied with its consultation requirements pursuant to clause 33 of the Agreement. In this
respect we agree with the findings of the Commissioner:
“[77] In relation to the consultation which Crown explained that it had undertaken in
accordance with clause 33 of the Agreement, it would appear from the email trail and
from Ms Scarlett’s evidence, that there was a conversation between herself and Mr
Kemppi in relation to the proposed changes at the Crown Promenade and the Sports
Consultant position redundancy. There is no evidence before me to suggest that the
verbal conversation between Ms Scarlett and Mr Kemppi was not as put by Ms
Scarlett. However, it did not assist the Commission that corroborating evidence of Ms
Scarlett’s discussions with Mr Kemppi was not led by the company.
[78] Accepting, therefore, that Ms Scarlett’s evidence of the conversation that she had
with Mr Kemppi is accurate, it would seem that the company has complied with its
obligations under clause 33 of the Agreement to consult with the union about the
redundancy. On the basis of the evidence, the discussion between the company and the
union was brief. However, it seems to have covered off all of the necessary relevant
issues and questions. At the end of the day, it was the union’s decision that there was
no need for it to have been in attendance at the meeting on 14 April 2015 when Mr
Tsiftelidis was told that his position was made redundant. Whether the union’s
decision in this regard was the correct one is not relevant to the Commission’s
considerations.”
Clause 24
[26] The next issue before us is whether the Respondent was required to comply with the
additional consultation requirements prescribed by clause 24 of the Agreement. Clause 24 of
the Agreement relevantly provides:
“24. Change Consultation
24.1 Consultative Committee
The company will establish a consultative committee, which will meet quarterly,
comprised of senior managers (as designated by the company), employee
representatives from across the different business units within the company and others,
as outlined below.
…
24.2 The purpose of the consultative committee will be to consult about the following:
Operational issues of a collective nature;
[2016] FWCFB 4675
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Health and Safety issues under this agreement of a collective nature;
Matters arising from the agreement when of a collective nature; and
Communication and consultation about major change as set out in sub-
clause 24.4 of the agreement.
24.3 For the purpose of this clause, matters of a collective nature will be those
affecting a group of employees covered by this agreement.
24.4 Major change
24.4.1 Company’s obligation to notify:
(a) If the company makes a definite decision to introduce major changes in
production, program, organisation, structure or technology in relation to its
enterprise and the changes are likely to have significant effects on employees,
the Company shall notify the employees as soon as practicable in writing who
may be affected by the proposed changes of its decision to introduce major
change in accordance with this clause 24.4.
(b) The relevant employees may appoint a representative for the purpose of the
procedures set out in this clause 24.4. If a relevant employee appoints, or
relevant employees appoint, a representative for the purpose of consultation
and the employee or employees advise the company of the identity of the
representative, the company must recognise the representative.
(c) In this clause 24.4, a major change is likely to have a significant effect on
employees if it results in termination of employment of employees, major
changes in the composition, operation or size of the company’s workforce or in
the skills required of employees, the elimination or diminution of job
opportunities, promotion opportunities or job tenure; the alteration of hours of
work; the need for retraining or transfer of employees to other work or
locations and the restructuring of jobs.”36
[27] This extract shows that clause 24 of the Agreement, and the additional consultation
requirements prescribed therein, are enlivened only when the Respondent “makes a definite
decision to introduce major changes in production, program, organisation, structure or
technology in relation to its enterprise.”37 It follows that to determine whether consultation is
required under clause 24, we must first determine whether the Appellant’s redundancy was a
“major change” within the meaning of the disputed clause (thereby enlivening the clause). In
giving consideration to this issue, we are guided by the most recent High Court authority,
Amcor Ltd v. CFMEU.
38
In that decision Gummow, Hayne and Heydon JJ considered the
interpretation of an enterprise agreement and said:
[2016] FWCFB 4675
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“[30] Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not
only to the text of cl 55.1.1, but also to a number of other matters: first, the other
provisions made by cl 55; secondly, the text and operation of the Agreement both as a
whole and by reference to other particular provisions made by it; and, thirdly, the
legislative background against which the Agreement was made and in which it was to
operate.”
[28] Kirby J said:
“[94] ... However, certified agreements such as this commonly lack the precise drafting
of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears
the common hallmarks of colloquial language and a measure of imprecision. Doubtless
this is a result of the background of the drafters, the circumstances and possibly the
urging of the preparation, the process of negotiation and the omission to hammer out
every detail - including possibly because such an endeavour would endanger the
accord necessary to consensus and certification by the Commission.
...
[96] The nature of the document, the manner of its expression, the context in which it
operated and the industrial purpose it served combine to suggest that the construction
to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible
industrial outcome such as should be attributed to the parties who negotiated and
executed the Agreement. Approaching the interpretation of the clause in that way
accords with the proper way, adopted by this Court, of interpreting industrial
instruments and especially certified agreements. I agree with the following passage in
the reasons of Madgwick J in Kucks v CSR Ltd
39
, where his Honour observed:
“It is trite that narrow or pedantic approaches to the interpretation of an award
are misplaced. The search is for the meaning intended by the framer(s) of the
document, bearing in mind that such framer(s) were likely of a practical bent of
mind: they may well have been more concerned with expressing an intention in
ways likely to have been understood in the context of the relevant industry and
industrial relations environment than with legal niceties or jargon. Thus, for
example, it is justifiable to read the award to give effect to its evident purposes,
having regard to such context, despite mere inconsistencies or infelicities of
expression which might tend to some other reading. And meanings which avoid
inconvenience or injustice may reasonably be strained for. For reasons such as
these, expressions which have been held in the case of other instruments to
have been used to mean particular things may sensibly and properly be held to
mean something else in the document at hand.’” (references omitted)
[29] Callinan J said that there was substance in the observations of Madgwick J in Kucks v
CSR Limited Ltd (Kucks). He then said:
“[131] An industrial agreement has a number of purposes, to settle disputes, to
anticipate and make provision for the resolution of future disputes, to ensure fair and
[2016] FWCFB 4675
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just treatment of both employer and employees, and generally to promote harmony in
the workplace. It is with the third of these that cl 55 of the Agreement is particularly
concerned. It is important to keep in mind therefore the desirability of a construction, if
it is reasonably available, that will operate fairly towards both parties. …”
[30] In Kucks, following the passage quoted above, Madgwick J went on to say:
“But the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or usual meaning.”
[31] In AMIEU v Golden Cockerel Pty Ltd (“Golden Cockerel”) a Full Bench of the
Commission considered this and other authorities and said that the resolution of a disputed
construction of an agreement will turn on the language of the agreement understood having
regard to its context and purpose.40
[32]
Clause 24.2 of the Agreement provides that the purpose of the consultative committee is to
consult about issues and matters arising from a “collective nature.” This indicates that a
matter is more likely to be a major change if it affects a collective group of employees, rather
than being a matter that impacts upon an individual. This indication is supported by the
evidence in exhibit A and exhibit B. For example, in exhibit A, Ms Gleeson confirms that
clause 24 is enlivened for collective matters only41 and not for individual redundancies.42
Similarly, in exhibit B, Ms Szalay agrees with Ms Gleeson and says that clause 24 is
enlivened only for collective matters.43 The weight of the evidence therefore supports the
conclusion that clause 24 of the Agreement, and the additional consultation requirements
imposed on the Respondent therein, are not enlivened by cases that are not of a collective
nature, such as individual redundancies.
[33] The frequent referral to the plural “employees” rather than “employee” in clause 24
further indicates that the clause captures changes to the Respondent’s workplace that impacts
upon a group of employees rather than an individual. We are satisfied that it follows that
clause 24 does not capture individual redundancies on the basis that individual redundancies
do not constitute a “major change” to the Respondent’s operations that impact upon a
collective of employees.
[34] As such, and applying Golden Cockerel, we prefer the Respondent’s submission that
the text of the Agreement, read as a whole, leads to the finding that the Appellant’s
redundancy did not enliven clause 24 of the Agreement. We reject the argument that the
Appellant’s redundancy constituted a “major change” that impacted upon employees as a
“collective” pursuant to clause 24. It follows that the argument that the Appellant’s
redundancy enlivened clause 24 is to be rejected, and, therefore, the Respondent was not
required to comply with the additional consultation obligations prescribed in the clause with
regards to the Appellant’s dismissal.
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[35] In light of this, we are satisfied that the Respondent was not required to comply with
the additional consultation requirements prescribed in clause 24 of the Agreement.
Summary
[36] We are satisfied that the Respondent, having complied with the consultation
requirements prescribed in clause 33 of the Agreement, met its consultation obligations in
relation to the redundancy of the Appellant.
[37] We are satisfied that there were no appealable errors in the Commissioner’s Decision.
The Commissioner correctly found that the Respondent:
Met its consultation obligations with regards to clause 33 of the Agreement; and
Was not required to comply with the additional consultation requirements prescribed
in clause 24 with regards to the Appellant’s dismissal.
[38] It follows that there is no basis upon which for us to quash the Commissioner’s
decision and that the appeal must be dismissed.
Conclusion
[39] The Respondent complied with its consultation obligations pursuant to clause 33 of the
Agreement.
[40] The Respondent was not required to comply with the additional consultation
requirements prescribed in clause 24 of the Agreement on the basis that the clause was not
enlivened by the Appellant’s dismissal.
[41] The appeal is dismissed.
VICE PRESIDENT
Appearances:
The Appellant was self-represented
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
[2016] FWCFB 4675
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The Respondent was represented by Mr Tamvakologos from Seyfarth Shaw
Hearing details:
10am
12 July 2016
Melbourne
Printed by authority of the Commonwealth Government Printer
Price code {C}, PR582702
1 [2016] FWC 1689.
2 Ibid at [92].
3 PR578345.
4 [2016] FWCFB 3345.
5 Transcript, PN9.
6 Transcript, PN 19.
7 Transcript, PN23.
8 Transcript, PN30.
9 Transcript, PN53.
10 Transcript, PN47.
11 Transcript, PN51.
12 Transcript, PN61.
13 Ibid.
14 Transcript, PN65.
15 [2016] FWCFB 3345.
16 Transcript, PN94.
17 Transcript, PN116.
18 [2016] FWC 1689 at [71]-[76].
19 Appellant’s Submissions, paragraph 6.
20 Appellant’s Submissions, paragraph 7.
21 Appellant’s Submissions, paragraph 9.
22 Appellant’s Submissions, paragraph 10.
23 Appellant’s Submissions, paragraph 11.
24 Appellant’s Submissions, paragraph 15.
25 Appellant’s Submissions, paragraph 17.
26 Appellant’s Submissions, paragraph 20.
27 Appellant’s Submissions, paragraph 22.
28 Appellant’s Submissions, paragraph 23.
29 Appellant’s Submissions, page 10, point 7.
30 Appellant’s Submissions, page 11, point 10.
31 Appellant’s Submissions, page 12, point 13.
32 Respondents Appeal Book, page 399, paragraph 18.
[2016] FWCFB 4675
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33 Respondent’s Appeal Book, page 399, paragraph 23.
34 Ibid, n 26.
35 Respondent’s Appeal Book, page 506.
36 Clause 24.4 of the Agreement.
37 Ibid.
38 (2005) 222 CLR 241
39 (1996) 149 CLR 337
40 [2014] FWCFB 7447, 41.
41 Exhibit A, paragraph 19.
42 Exhibit A, paragraph 23.
43 Exhibit B, paragraph 4.
