FWC dismisses unfair dismissal claims from redundant construction workers

FWC dismisses unfair dismissal claims from redundant construction workers

The Fair Work Commission has rejected unfair dismissal claims from five construction workers who were made redundant near the end of a construction project in Melbourne.

All five applicants were employed by CPB Contractors Pty Ltd (CPB), part of the CIMIC Group, a construction company that designs and builds infrastructure, including roads, tunnelling, defence, building and resources infrastructure.

Their most recent employment was on the Monash Freeway Upgrade – Stage 2 Project (Monash Project).

As noted by Commissioner Michelle Bissett, the circumstances surrounding the termination of each employee were identical, and she, therefore, allowed the applications to be heard concurrently. The employment of the applicants was covered by the Melbourne Major Road Projects Greenfields Agreement 2020 (the Agreement).

The Agreement contains a standard clause concerning the requirement for consultation when major change is being anticipated; however, it includes the following provision “Change including demobilisation of employees related to the customary completion and winding down of project activities does not constitute major change”.

Each of the five workers had been employed on the Monash project for approximately two years before being made redundant in September 2022. They acknowledged that they had extensive experience working in the building and civil construction sector doing work on a project basis.

Commissioner Bissett accepted evidence from the Project Director on the Monash Project that there had been a significant downturn in work from August 2022, when approximately 97 blue-collar workers were engaged, to September 2022, when only 26 were required. The Project Director estimated that at that point, the project had reached 95-98% completion stage.

In accepting the submission that there was no work available for the applicants on the Monash Project, Commissioner Bissett also accepted CPB’s submission that they only had two other employees directly hired by the company across the 4 Victorian projects they were involved in, meaning there was no opportunity to redeploy any of the five workers.

Commissioner Bissett did, however, reserve some criticism of the process adopted by the company. As she noted, “sound management practice would have been to have ensured workers on the site were regularly briefed as to the anticipated end date of the works and of the attempts being made at the administrative level to identify potential work on other projects or the consequences if alternative work could not be found. That the Respondent waited until four days prior to the handing of redundancy notices to the Applicants and others on site to formally advise that the Monash project was winding down is not, in my view, sound or appropriate modern management practice”.

Finding that the terminations of all five workers were due to genuine redundancy, Commissioner Bissett dismissed the applications.

AR, TF, TL, AR & JS v CPB Contractors Pty Ltd (U2022/9850, U2022/9851, U2022/9852, U2022/9853, U2022/9855) 21 March 2023

.For queries about redundancies, workforce turnover, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

Ref: 335.0523

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