Full Bench denies appeal for a reduction in redundancy obligations

Full Bench denies appeal for a reduction in redundancy obligations

A Full Bench of the Fair Work Commission has rejected an employer’s appeal against an earlier decision of the Commission to reject the employer’s application to reduce the quantum of redundancy payments.

Ready Workforce (A division of Chandler Macleod) Pty Ltd (Ready Workforce) is a labour-hire company. Between September 2014 and October 31, 2021, Ready Workforce provided labour to a BHP owned mine at Mount Arthur in the Hunter Valley region of New South Wales. The labour-hire arrangement involved Ready Workforce supplying in excess of 250 dump truck operators or dump train trainers to the mine.

On or around September 29, 2021, Ready Workforce was advised by BHP that it had been unsuccessful in retaining the tender for the supply of labour to the mine, and the company ceased the provision of labour on October 31, 2021.

The tender was awarded to Programmed Skilled Workforce Limited (Programmed) with a commencement date of October 1, 2021.

Ready Workforce undertook a number of initiatives to encourage their staff to seek work with the new labour provider. This included an initial telephone discussion on October 5, 2021, with the HR leaders of both companies, where Ready Workforce stated they wanted to employ their workers with Programme. A subsequent email on the same day stated, “we are looking to do all possible to ensure we can place our perm [anent] employees with Programmed”.

On October 11, 2021, Ready Workforce emailed their relevant employees to advise their employment would end on November 11, 2021, and included a statement, “In order to cause employment offers to be made to you from the supplier, we have commenced and will continue the following proactive steps in obtaining you employment …”.

On October 12, 2021, Programmed responded to an email query from Ready Workforce confirming they had conducted approximately 180 interviews and were moving towards offering employment.

In the initial case before Commissioner Ian Cambridge, Ready Workforce applied to the Commission to reduce the redundancy entitlements of 12 workers on the basis of their collaborative efforts to secure employment with Programmed on similar terms and conditions as their existing employment.

Ready Workforce submitted that their efforts met the conditions of s120 of the Fair Work Act 2009 in that they had provided “other acceptable employment for the employee” and, therefore, should be able to reduce the amount of their redundancy liability.

The Full Bench, comprising Vice President Hatcher, and Deputy Presidents Clancy and Millhouse, respectively disagreed and could not find error in Commissioner Cambridge’s decision.

As they noted,

“… the material advanced by Ready Workforce in support of its position was insufficient to satisfy the test of procurement established in the Full Court in FBIS. Ready Workforce did not obtain the employment with Programmed in the sense that it did not acquire or get the employment by its conscious, intended acts … Ready Workforce may have assisted and facilitated the potential for the respondent employees to secure employment with Programmed”.

Put simply, the Full Bench endorsed the reasoning of Commissioner Cambridge that, in reality. Ready Workforce did no more than facilitate and assist employees in the recruitment process and did not reach the threshold point where it could be accepted that they had actually obtained employment with Programmed for their workers.

Ready Workforce (A Division of Chandler Macleod) Pty Ltd t/a Chandler Macleod v AL, BM, DL, GM, JE, JB, MK, RS, SD, SM, TF [2022] FWCFB 173 (30 September 2022)

The appeal was dismissed.

For queries about labour hire, redundancy entitlements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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