[2014] FWC 4914
FAIR WORK COMMISSION

REASONS FOR DECISION


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 Decision 1 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 statement 3. Mr McNeil is 56 years old. His evidence as to his personal circumstances is set out below.

[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

[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:

[7] Mr McNeil's evidence regarding his meeting with Ms Bates and Mr Tsiakos is set out below:

[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

[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:

[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:

[12] Mr Perry’s evidence regarding his travel arrangements if he had to work at Ingleburn is set out below:

[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.

---

[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:

[16] Mr Reid also asked Mr Perry about selling or renting his house. His response is set out below:

[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:

[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.

[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:

[27] Mr Stueski’s evidence regarding his travel arrangements if he had to work at Ingleburn is set out below:

[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.

[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:

[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.

[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:

[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:

[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.

[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 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.

[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 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.

[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

 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

 12   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

 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

Printed by authority of the Commonwealth Government Printer

<Price code F, PR553398>