Fair Work Act 2009_

s 120 - Application to vary redundancy pay for other employment or incapacity to pay

Forster Tuncurry Golf Club Ltd t/as Forster Tuncurry Golf Club

Application to vary redundancy pay - financial circumstances of golf club - transfer of Bar Supervisor - employee's caring responsibilities - 'other acceptable employment' - no change to job, remuneration or hours of work - night shift conflicts with employee's caring responsibilities - various options put by Club - employee requires fixed roster - balance of other considerations - Club's offers constitute 'other acceptable employment' - employee's unwillingness to cooperate - determination that redundancy pay be reduced to nil.

[1] Forster Tuncurry Golf Club Ltd t/as Forster Tuncurry Golf Club (the 'Club') recorded a loss of $141,338 for the first five months of the Club's 2015 financial year. The Club has two sites in Forster and Tuncurry, New South Wales. On 25 June 2015, as a result of the financial stress the Club was experiencing, the Board of Directors decided to contract out the bar services at the Tuncurry site. Consequently, the sole Bar Supervisor, Mr Martin Crew, who had worked for the Club for 7� years, was offered a transfer to the main site at Forster. He was to retain his position as Bar Supervisor with the same hours (20-22 hours a week), and the same rate of pay. The new position was ten minutes' drive from his home. He would be required to work a rotating roster with the other three Bar Supervisors at Forster.

[2] At the Tuncurry site, Mr Crew had worked a fixed three days a week roster (Tuesday, Thursday and Friday) with no night or weekend shifts so as to accommodate his caring responsibilities for his very ill wife. These arrangements were agreed to by the Club in August 2013 after his wife had suffered a serious stroke, which left her unable to look after herself at home. Family and friends cared for Mrs Crew on the three days Mr Crew worked day shifts.

[3] Discussions were held with Mr Crew and his Union representative in July 2015 concerning his transfer to the Forster site. At this time, the Club could not guarantee Mr Crew's previous fixed day shift roster due to the pressure it would place on the three other Bar Supervisors who would be required to work additional weekend and night shifts. The Club also required greater flexibility in the event of Supervisor absences and it was difficult to insert a fixed roster into the rolling roster of the other Bar Supervisors. Mr Crew wished to retain his existing arrangements, primarily because of the 24 hour care required for his wife, his need to have particular days off to attend medical appointments with his wife and the difficulties in arranging other carers if he was rostered to work night or weekend shifts.

[4] Ultimately, no agreement could be reached between the Club and Mr Crew. As Mr Crew declined to accept the arrangements proposed for his reassignment, the Club terminated his employment on 31 July 2015 in a letter which stated, inter alia:

'On behalf of the board of board of directors and senior management, it was with regret that I inform you that your position of employment has been made redundant.

Senior management consulted with you regarding the proposed redundancy on July 24 2015 and offered suitable alternative employment at that meeting and you did not wish to accept this proposal.

Your last day of employment will be July 31 2015. We confirm that the Club does not require you to work out your notice period and accordingly you will be paid in lieu of notice.'

[5] Given the view of the Club as to its offer of 'suitable alternative employment', it is unsurprising that the Club filed an application, pursuant to s 120 of the Fair Work Act 2009 (the 'Act') to reduce the redundancy pay, otherwise payable to Mr Crew, to nil. United Voice (the 'Union') pressed on behalf of Mr Crew for him to be paid his full redundancy pay enttilements under the National Employment Standards (NES) (13 weeks' pay) on the basis that the work at the Forster site was not 'other acceptable employment', as it did not maintain his fixed three day shifts.

[6] At this point, I set out the statutory provisions governing the determination of an application made under s 120 of the Act:

120 Variation of redundancy pay for other employment or incapacity to pay

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(i) obtains other acceptable employment for the employee; or

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

[7] Consequent upon the filing of the application, the Fair Work Commission (the 'Commission') convened a number of conferences with the parties in an effort to reach a settlement of the matter. Various options were discussed which resulted in an offer by the Club to allow Mr Crew to have Mondays and Wednesdays off and for him to only work day shifts, if he would agree to occasionally work on the weekends and other days in the week, in accordance with a rotating roster. The Union responded that Mr Crew should be backpaid for the period between his termination of employment and reinstatement and be given a fixed day shift roster or, alternatively, he be paid his full NES redundancy pay entitlements. As no agreement could be reached, I issued directions for the filing of evidence and any other relevant material and listed the matter for hearing on 2 December 2015. Mr M Ushakoff of Clubs New South Wales represented the Club and Mr M Dusevic from United Voice represented Mr Crew.

[8] The issue to be determined by the Commission is whether the Club should be relieved of the obligation to pay any redundancy pay to Mr Crew, on the basis that it had offered him 'other acceptable employment' and he refused to accept this employment. The Club had also initially claimed that its difficult financial position was a consideration as to why it should not be required to pay redundancy pay to Mr Crew (s 120(b)(ii)), but this was not pressed in the proceeding. For the record, given the amount of redundancy pay, otherwise payable to Mr Crew, was 13 weeks x 3 days (around $5,000), I do not consider the incapacity to pay argument would have been particularly persuasive.

[9] In addition, the Commission understands Mr Crew does not dispute the Board's decision to remove the bar services from the Tuncurry site, as a cost saving measure, given the Club's difficult financial circumstances. It follows that Mr Crew does not dispute that his Bar Supervisor position at the Tuncurry site, no longer exists.

[10] It is not in issue that Mr Crew's employment was governed by the Registered and Licensed Clubs Award 2010 [MA000058] (the 'Modern Award'). The Club relied on a number of the Modern Award's provisions in respect to Hours of Work, rostering and rostering changes. For convenience, I set out these provisions below.

[11] The Hours of Work provisions for Part-Time Employees employed before 1 January 2015 are set out in cl 10.4(b) and specify:

In respect of part-time employees engaged prior to 1 January 2015, the following provisions will also apply:

(i) the pattern of ordinary hours of work for any such employee may, notwithstanding clauses 10.4(a)(iii) and (iv), be set by a roster established in accordance with clause 25 - Roster; and

(ii) where the pattern of ordinary hours is set by such a roster, any hours worked in addition to the rostered ordinary hours will be overtime and paid for at the rates prescribed in clause 28 - Overtime.

[12] The Hours of Work set by the roster reference in cl 10.4(b) can be altered by cl 25. This clause states:

25.1 A roster for all full-time and part-time employees showing normal starting and finishing time and the surname and initials of each employee will be prepared by the employer and will be posted in a conspicuous place or places accessible to the employees concerned.

25.2 The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days' notice. Where practicable two weeks' notice of rostered day or days off will be given provided that the days off may be changed by mutual consent or through absence, through sickness or other cause over which the employer has no control.

[13] Clause 8.2 of the Modern Award imposes an additional obligation on employers that seek to vary an employee's regular roster or ordinary hours of work. It is expressed as follows:

(a) Where an employer proposes to change an employee's regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee's regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements [my emphasis].

[14] The following persons gave evidence in the proceeding:

• Mr Kevin Webster, Bar Manager for the Club; and

[15] Mr Turner has been the Club's General Manager since August 2008. He has held various senior positions in the sports, leisure and hospitality industries.

[16] Mr Turner described the employment history of Mr Crew at the Club. Mr Crew commenced employment in January 2008 as a full time Level 5 Bar Supervisor. In September 2008, Mr Crew accepted the Club's offer for him to work part time due to the Club's then financial difficulties. In May 2010, Mr Crew was appointed Bar Supervisor at the Tuncurry site, working an average of 34 hours a week. This move was suggested because the other supervisors did not like working at Tuncurry and Mr Crew had some ideas to improve bar sales. Nevertheless, Mr Crew was occasionally required to work at the Forster site, including on Saturdays. During the period in which Mr Crew's wife suffered a stroke in December 2012 and remained in a critical condition for several months, the Club provided him with significant paid time off on carers' leave. In August 2013, Mr Crew asked for a cutback in his hours to care for his wife and this was agreed to by the Club.

[17] Mr Turner said that he and Mr Webster had a meeting with Mr Crew on 3 July 2015. It was explained to him that the Tuncurry bar would be closed due to the significant losses being experienced and the Club's general financial difficulties. When Mr Webster offered Mr Crew an opportunity to review the new rosters he had prepared for the Forster site, Mr Crew simply replied 'No thanks'. Mr Turner explained the reasons why Mr Crew could not retain the same fixed roster he had at Tuncurry (see para [3]).

[18] Mr Turner decribed the meeting he and Mr Webster had with Mr Dusevic and Mr Crew on 24 July 2015. Mr Webster had prepared new rosters which included day and night shifts, but these were not discussed. Mr Turner put a proposal for Mr Crew to work the same days and shifts at Forster. Mr Crew replied:

'I don't think that would work because the other supervisors would be resentful of me because it will be seen that I am getting preferential treatment whilst the other supervisors have to work nights and on a rotating roster.'

Following this meeting, Mr Crew's employment was terminated on 31 July 2015.

[19] In his statement, Mr Turner said that after the mention of this matter in the Commission on 8 September 2015, the Club offered Mr Crew two further options of continuing employment:

1. A three day rotating roster of approximately 21 hours per week on day shifts; or

2. A part time rotating roster of night and day shifts in line with the other Bar Supervisors (this was the same offer made on 3 July 2015).

[20] The Union responded by rejecting the above offers. It proposed that:

1. Mr Crew be offered a set roster of Tuesday, Thursday and Friday day work, the pattern in which he was rostered prior to his redundancy;

2. Should such days in point 1 be untenable, a timeframe of 8 weeks' notice to be given to allow Mr Crew to make alternative arrangements for his wife's treatment plan and the engagement of other carers. The Union sought that this timeframe on the basis of the lack of flexibility arising from such short notice to reschedule appointments on different days.

3. If an alternative pattern of work was to be agreed to, that such an arrangement not be altered unless by mutual consent.

[21] The Club's final proposal and the Union's response are set out above at para [7]. Mr Turner said the Club's position was put to the Union and Mr Crew on three further occasions. He believed the Union's position was unworkable and unfair to the other Bar Supervisors. It was Mr Turner's belief that Mr Crew did not want to work at Forster as he did not seriously consider any of the offers of alternative employment put to him.

[22] In a reply statement, Mr Turner agreed that while relief supervisors could be drawn from within the Grade 3 casual pool, casual employees can still refuse these shifts and it might still be a problem over Christmas and New Year. In any event, a rotating roster would be fair for all of the Bar Supervisors. Mr Crew actually agreed that fairness to the others was a consideration.

[23] Mr Turner said he had no previous knowledge of Mrs Crew's medical treatment. Mr Crew had told him he could not work night shifts as he could not leave his wife unattended.

[24] In cross examination, Mr Turner said that around August 2013, when Mr Crew was still working at Tuncurry, he had encouraged him to come to Forster once a week, before starting work, to make him feel he was still part of a team. Around this time, Mr Crew requested his hours be reduced and the Club agreed this was a valid request. However, nothing was put in writing. Mr Turner conceded that he considered this was an ongoing arrangement between Mr Crew and himself. Mr Turner said that in the initial few months of Mrs Crew's illness, he would often inquire of Mr Crew as to her progress, as he was genuinely concerned for her condition.

[25] Mr Turner described the arrangements for operating the Tuncurry site. The golf professional and staff in the pro-shop share some of the bar duties. There is a fee paid to the Club of $3,000 a month and commission on bar sales if there is a special event, such as a golf competition. This is a financially beneficial arrangement for the Club. Mr Turner said that when the Club was a 'basket case' in 2008, the five full time Bar Supervisors were offered redundancy. One accepted redundancy and the other four, including Mr Crew, accepted ongoing part time employment. This situation was entirely different to the current circumstances.

[26] Mr Turner agreed with Mr Crew that the other Bar Supervisors might not be too happy with Mr Crew only working weekday shifts. Mr Turner said that at the time, he did not have any of the details of the medical appointments Mr Crew was required to take his wife to.

[27] Mr Turner's updated financial assessment was that the Club would lose $60,000 this financial year. He added that many golf clubs are experiencing financial difficulties with just one golf course to maintain, while Forster has two. He observed that golf clubs are also very dependent on the weather and there had been fairly bad weather in May, June and July of 2015. While Mr Turner acknowledged that the redundancy payment of $5,000 would not bankrupt the Club, it was his job to look at all means of making costs savings. For example, he had recently entered into a new power agreement which would reduce costs for the Club. At this point, Mr Ushakoff said that the Club was not pressing an incapacity to pay argument and in response, Mr Dusevic indicated that the Union would not ask further questions on the Club's finances.

[28] Mr Turner recalled that Mr Crew did not really commit to much in their meetings and said he would be obtaining advice as to his rights. He showed no interest in looking at the rosters Mr Webster had prepared. Mr Turner formed the impression that Mr Crew was not interested in working at Forster because when asked if he would consider day rosters if it could be arranged, he answered emphatically, 'No'. Mr Dusevic responded by submitting that this offer was all 'ifs and buts', rather than promises.

[29] Mr Turner said he did not fully understand Mr Crew's insistence on a fixed roster, as he had worked on Saturdays at Forster, with notice, on earlier occasions. Mr Turner believed that he had to balance the running of the business with the accommodation of Mr Crew's caring responsibilities. This could not include permanently locked in shifts, notwithstanding rosters are notified two weeks in advance. Flexibility was needed for unpredicted circumstances, such as sick leave. Mr Turner believed Mr Crew was also required to balance his job responsibilities with his wife's needs.

[30] In re-examination, Mr Turner stressed the difference of the one person operations at Tuncurry with preparing rosters for three other Bar Supervisors and casual staff at Forster. There had to be an equitable sharing of the shifts over the roster for all employees.

[31] Mr Turner highlighted the level of consultation with Mr Crew over the changes at Tuncurry. He spoke to him the day after the Board's decision (26 June 2015) and Mr Crew fully appreciated the effect on morale of the other Bar Supervisors should he be offered the same arrangements he had at Tuncurry. However, he expressed no interest in considering any options. Further options were put after his termination of employment and all of them were refused. The final offer was rotating day shift rosters with fixed days off on Mondays and Wednesday, so that Mr Crew could take his wife to medical appointments. This was also refused.

[32] Mr Webster commenced employment at the Club as a Bar person in May 2009. He was appointed Bar Manager in May 2010. Much of Mr Webster's evidence dealt with Mr Crew's employment and the reasons for the changes at the Tuncurry site. His evidence in this respect reflected that of Mr Turner and I do not replicate it here.

[33] Mr Webster is responsible for preparing the bar staff rosters. He prepares the Bar Supervisor rosters every two or three weeks. Mr Webster prepared a draft roster for Mr Crew to consider at the 3 July 2015 meeting. He declined to look at any of the proposals, which provided him with the same hours, but in a rotating roster with the other Bar Supervisors. Mr Webster's version of the conversation at the 24 July 2015 meeting was consistent with Mr Turner's evidence. Mr Webster had prepared rosters offering Mr Crew different times and alternatives within a roster rotation, but that were not discussed because Mr Crew declined to consider any of the Club's proposals.

[34] Mr Webster referred to the two further options put to Mr Crew after the termination of his employment. However, Mr Crew would only accept a fixed roster. This would restrict the Club's options and the other Bar Supervisors would be unhappy with him only working weekday shifts. Mr Webster believed Mr Crew had no intention of accepting alternative work at Forster and 'just want[ed] a payout'.

[35] In a second statement, Mr Webster advised that the Club has two casual staff members (at Level 3) who do relief supervisor duties. When performing higher duties at Level 5, Mr Webster employs extra casual employees to cover holes in the roster. He said that having an employee who can only work a fixed roster creates problems in covering annual and sick leave absences.

[36] In cross examination, Mr Webster said he did not see Mr Crew regularly because they worked at the different sites. However, he was aware that his wife had a serious medical problem.

[37] Mr Webster acknowledged that the rosters he had prepared for Mr Crew on 26 June and 3 July 2015 were rotating rosters incorporating day and night shifts. At the time, Mr Webster was aware that Mr Crew could not work nights because of his wife's caring needs. Mr Webster said that Mr Crew had simply replied that he would have to consider his options. Mr Webster accepted that there may be no problems with the other Bar Supervisors, if Mr Crew was offered a fixed day shift roster. While Mr Webster conceded that such a roster could be prepared, he did not believe that Mr Crew would accept that either. Another rotating roster was prepared which had three work day shifts, including Thursday, Friday and Saturday.

[38] Mr Webster conceded that it was unfortunate that Mr Crew could not meet the Club's rostering requirements because of his wife's needs. The final position put by the Club was a rotating roster with Mondays and Wednesdays off. Mr Webster agreed he could have prepared rosters longer than two to three weeks in advance. He conceded that he could prepare a six week roster in advance, so that Mr Crew could arrange for his wife's appointments. He would just have to work around those shifts with the other Bar Supervisors. However, he was not the decision maker. In any event, he did not believe Mr Crew ever intended to work at Forster.

[39] Mr Crew's evidence dealt with his history of employment at the Club and the catastrophic circumstances he faced when his wife suffered a major stroke on 19 December 2012. Mr Crew acknowledged that at the time, the Club was 'quite supportive given my circumstances'. In August 2013, it was agreed he would work three days a week: Tuesday, Thursday and Friday, due to the fact that his wife required a full time carer, as she was unable to drive or prepare meals. She has impaired vision, memory loss, general confusion and requires ongoing medication.

[40] Mr Crew described the arrangements he made with family and friends when he was rostered to work. On Mondays and Wednesdays, Mr Crew was required to take his wife to various medical and rehabilitation appointments. Saturdays and Sundays were spent with his wife and doing the housework.

[41] Mr Crew detailed his recollection of the conversations in each of the meetings he had with the Club's management. On 26 June 2015, he was told of the decision to contract out the bar services at the Tuncurry site and he was to be offered day and some night shifts at Forster. Mr Crew claimed that Mr Turner told him that if he could not work nights and had to leave, he would be paid all his entitlements, except long service leave.

[42] In the 3 July 2015 meeting, Mr Turner asked if anything had changed since the week before, including working night shifts. Mr Crew replied that there was no point discussing the rosters, as he could not work nights and he would take redundancy instead. Mr Turner told him that he was not entitled to redundancy. Mr Crew said he had been advised that the alternative job offer was not suitable. In the 24 July 2015 meeting with the Club and Mr Dusevic, Mr Turner again stressed the roster could require night shifts. After some discussion, Mr Turner asked if he would accept day only shifts. Mr Crew replied:

'No as I don't think the other supervisors would agree to this as the supervisors need to work nights.'

Mr Crew believed that this was not a genuine offer by the Club because there was no set roster proposed.

[43] Attached to Mr Crew's statement was a number of emails which were subsequently exchanged between Mr Dusevic and the Club.

[44] Mr Crew insisted that, at no time up to this point, would the Club confirm a set roster. This was paramount to his care for his wife. He believed the Club no longer wanted to employ him and only made its subsequent offers in an attempt to avoid paying redundancy pay. He did not believe these proposals were genuine because they were not existing shifts, but were rather newly created shifts on the roster.

[45] In response to Mr Turner's statement, Mr Crew said that a set roster would not be unworkable because there are two relief supervisors who are utilised on a regular basis when permanent supervisors are unavailable. Mr Crew put that for his reemployment to be suitable, it must include roster stability and set shifts to ensure the appropriate care for his wife.

[46] In cross examination, Mr Crew acknowledged that in the three meetings he had with the Club, he was provided an opportunity to put his views about the proposed changes. Mr Crew said he had rejected the various offers put by the Club because they did not include a fixed roster. He accepted, however, that it would be difficult for the Club to accommodate this request. Mr Crew did not believe the Club had properly considered the impact on him and his family with the proposals the Club had put to him.

[47] In re-examination, Mr Crew said he had worked sporadically at Forster on Saturdays, but this was before his wife became ill. Mr Crew explained that he had not looked at the early rosters prepared by Mr Webster, because it had been made clear that they included rotating shifts, which were not acceptable to him.

[48] Mr Ushakoff submitted that the Club had obtained 'other acceptable employment' for Mr Crew and any redundancy pay entitlement, otherwise due to him, should be reduced to nil. Consideration should be given to Mr Crew's refusal to cooperate in exploring options to maintain his employment. In the alternative, Mr Ushakoff submitted that any redundancy entitlement should be significantly reduced.

[49] Mr Ushakoff outlined the background to the Club's application, which is otherwise set out in the evidence earlier in this decision. He emphasised the further options put to Mr Crew after the termination of his employment. This included maintaining the three day shifts Mr Crew had previously worked, but in a rotating roster, under the provisions of the Modern Award, with the Club providing two to three weeks' notice of roster changes. This was in excess of the minimum notice requirements under the Award. A further offer was put in response to Mr Crew's need to have Mondays and Wednesdays to take his wife to medical appointments. The Club agreed to these arrangements in which Mr Crew would have Mondays and Wednesdays off, but could not offer him a fixed roster for the other shifts. In addition, he would not be rostered on night shifts.

[50] Mr Ushakoff submitted that the Club could not offer a fixed roster for three primary reasons:

• the difficulties of fitting a fixed roster in the other Bar Supervisors rotating roster;

• The need for flexibility for function/fluctuations in trade or the unavailability of other staff; and

• potential negative impact on the morale of other Bar Supervisors, who would have to work nights and weekends in the rotating roster.

[51] By reference to the provisions of s 120 of the Act, Mr Ushakoff submitted that the offers of reemployment were 'acceptable employment'; See: Australian Chamber of Manufactures v Derole Nominees Pty Ltd [1990] AIRC 980; (1990) 140 IR 123 ('Derole Nominees'); Transport Workers' Union of Australia v Linfox Australia Pty Ltd (2013) 232 IR 386; Oscar Oscar Group Services Pty Ltd v Lees (2012) 221 IR 121 and Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 ('Vicstaff').

[52] Mr Ushakoff noted that Mr Crew had been offered the position of Bar Supervisor, with the same rate of pay, the same hours of part time work and at a location a similar distance from his home to Tuncurry. The only difference was that Mr Crew could not be offered a fixed roster. Mr Ushakoff stressed that the Club had a right to change a part time employee's roster, with the required notice and following consultation. There was no alteration to Mr Crew's substantive conditions of employment, because his hours of work could change irrespective of whether he worked at Tuncurry or Forster. These circumstances must constitute 'other acceptable employment', for the purposes of s 120 of the Act.

[53] Mr Ushakoff submitted it was clear the Club had genuinely consulted with Mr Crew and considered his caring responsibilities (cl 8.2(b)(ii)) prior to the termination of his employment. The Club had been willing to offer concessions, but Mr Crew was immovable in insisting on a fixed roster.

[54] Mr Ushakoff demonstrated the absurdity of the proposition that an employee would be entitled to redundancy pay whenever his/her hours of work were changed, in accordance with the Modern Award, but were deemed 'unacceptable' by the employee, or when an employer changed the hours of work to accommodate an employee's personal, family or caring responsibilities and was unable to change the hours, without paying redundancy pay. He submitted that such a position would act as a disincentive to accommodate the needs of employees experiencing difficulties in their lives outside of work.

[55] Further, Mr Ushakoff submitted that Mr Crew's lack of interest and unwillingness to consider the Club's offers of acceptable employment should also be taken into account; See: Clothing and Allied Trades Union of Australia v Algray Pty Ltd (1989) 31 IR 365 and Re Milk Processing and Cheese Manufacturing &c. Award. (Appeal) Case (1978) CurrentReview 670 ('Re Milk Processing Award').

[56] Mr Ushakoff submitted that the post termination offers of the Club for three daytime shifts (21 hours), with Mondays and Wednesdays off were further evidence of the Club's willingness to explore options to ensure Mr Crew remained employed by the Club. Notwithstanding the Club's operational difficulties in preparing this option, this offer was also rejected. Mr Ushakoff put that it is not Mr Crew's subjective opinion of what constitutes 'other acceptable employment' which is determinative. The test is an objective one; See: Derole Nominees. These latter offers are not irrelevant, because they demonstrated Mr Crew's consistent unwillingness to discuss alternative options for acceptable employment.

[57] Mr Dusevic's submissions also dealt with the uncontested factual background to the matter, which I need not repeat.

[58] Mr Dusevic submitted that in August 2013, Mr Crew discussed with Mr Turner his wife's condition and his need for a set pattern of work, so he could ensure his wife was appropriately cared for. Mr Turner accepted his request knowing the details and the need for Mr Crew to have ongoing full time care. In the two meetings with Mr Turner and Mr Webster on 26 June and 3 July 2015, Mr Crew was advised he would be required to work a rotating roster, which included night shifts. Mr Crew confirmed his inability to work night shifts because of the need to care for his wife. A further meeting with the Union was held on 24 July 2015. Mr Crew disputed that any genuine offer of day work was made to him. He was not offered any other work, outside of the role of Bar Supervisor, nor were other options explored.

[59] After this application had been filed, Mr Dusevic said that the same offer, including a night shift was offered on the basis of the Club approving a request for flexible work arrangements. Mr Dusevic described this request as 'disingenuous'. Mr Dusevic claimed that it was not until 22 September 2015 that the Club's proposal dropped the night shift roster.

[60] Mr Dusevic submitted the Club's offers did not constitute 'other acceptable employment'. 'Acceptable employment' should not be read as any proposal is suitable. Mr Dusevic added that because the Club agreed to terms and conditions in August 2013, on an ongoing basis, this arrangement could not be altered, without mutual consent.

[61] Mr Dusevic cited Cleandomain Pty Ltd v Flavell [2014] FWC 5243 as authority for the proposition that in addition to obvious factors, such as location, rates of pay etc, there may be other relevant factors. The Club could not maintain the August 2013 arrangements and given Mr Crew's specific caring responsibilities, the offers of the Club were not 'other acceptable employment'.

[62] Mr Dusevic submitted that Mr Crew engaged in discussions, at all relevant times, and made all reasonable attempts to secure ongoing employment at the Club, subject to his caring responsibilities; See: UXC Connect v Moore [2012] FWA 4296. These responsibilities constituted a mutually recognised element of his employment conditions, for approximately two years, which the Club was prepared (and able to) accommodate.

[63] Mr Dusevic put that the onus of proof in this case rested with the Club. This onus had not been discharged and in the ordinary course, Mr Crew was entitled to be paid the NES redundancy pay standards. The Club's application for orders should be dismissed.

[64] In a reply submission, Mr Ushakoff said that while the Club had accepted Mr Crew's request for a fixed roster, being aware of the need for him to care for his wife, the Club had very little detail of his wife's treatment and care and was only given these details after his employment was terminated.

[65] Mr Ushakoff put that it was incorrect to submit that the Club had not put any genuine offers of day work to him. Rather, Mr Crew refused to discuss any rosters. Furthermore, guaranteed day shifts were offered on four occasions after his termination. In all cases, Mr Crew would have been provided with two to three weeks' notice of any roster changes.

[66] Mr Ushakoff referred to the Club's proposal that Mr Crew make a request for flexible work arrangements under s 65 of the Act. There was nothing disingenuous about this request, notwithstanding this was not sought in August 2013. However, given the Club had very little information or details of his wife's condition, it would be easier to make the appropriate arrangements at Forster under s 65(3) of the Act. In any event, under s 65(5A) of the Act, the Club may refuse a request for flexible working arrangements on reasonable business grounds. Section 65(5A) of the Act is expressed as follows:

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

[67] Mr Ushakoff refuted the Union's submission that Mr Crew made 'all reasonable attempts to secure employment at the Club'. On the contrary, Mr Crew refused to even look at the proposed rosters or discuss any other options, other than his inflexible position of insisting on a fixed roster.

[68] Mr Ushakoff disputed Mr Crew's assertion that the Club could engage its two casual relief Bar Supervisors in the circumstances of replacing other absent Bar Supervisors. As Grade 3 casual employees, they can also refuse shifts and there can be a knock on effect of filling their Level 3 duties with other casual employees, who may also refuse the shift.

[69] Notwithstanding all of the above submissions, the Club still had a unilateral right, following consultation, to change Mr Crew's hours of work in accordance with cl 8.2 of the Award. Therefore, the only difference in the work at Tuncurry and Forster was location, which Mr Crew conceded was not an issue. The evidence must objectively demonstrate that the offers of other employment at Forster, constituted offers of 'other acceptable employment'. The orders sought by the Club should be granted.

[70] In my view, there can be no doubt, from the express provisions of cl 8.2 of the Modern Award, that the Club has the legal right to make changes to an employee's regular roster or ordinary hours of work, subject to the consultative provisions of cl 8.2(b) and the Award's notice requirements of cl 25.2. Consultation requires the Club to give consideration to an employee's views as to the impact of the proposed changes, specifically, in this case, to Mr Crew's caring responsibilities.

[71] It must be stressed that the consideration of the employee's views does not mean the Club must accept these views or that the employee can veto the Club's proposals. The meaning of 'consideration' in this context will often be subject to some controversy, but it seems to me that the question of whether an employer has genuinely considered the views of the employee, will likely be answered in the affirmative when the employer adjusts its proposal to meet the employee's concerns. This does not mean meeting the totality of the employee's concerns, because other factors will need to be balanced in such a consideration.

[72] In this case, the Club not only modified its offers after taking Mr Crew's views into account, but did so at least three times. I found it somewhat curious that Mr Crew criticised the Club for creating shifts for him. He claimed this was not genuine because they were not existing shifts. I would have thought this was a genuine attempt by the Club to go out of its way to seek a reasonable accommodation with him.

[73] In light of these observations and for the following reasons, I reject Mr Dusevic's submission that the August 2013 arrangements were an ongoing contractual employment arrangement, which could not be altered, unless by mutual consent.

[74] Firstly, it was true that the Club agreed to, and accommodated Mr Crew's request for a fixed roster in August 2013. However, Mr Dusevic's submission completely ignores the fact that that his position at Tuncurry was made redundant due to Club's financial circumstances (which was not seriously contested). The Bar Supervisor arrangement at Tuncurry which was able to be accommodated in 2013, because of the specifics of that role, was irrevocably altered for sound financial reasons in 2015.

[75] Secondly, Mr Dusevic's submission is silent on the legal right of the Club to alter an employee's roster and hours of work according to the Modern Award provisions; a fortiori, in circumstances where the employee is working part time. If Mr Dusevic is correct, it would render the Award's notice and consultation provisions nugatory.

[76] Thirdly, I agree with Mr Ushakoff's submission that a corollary of Mr Dusevic's contractual proposition would be that any employee could claim redundancy if their roster was altered after consultation, but to which they did not consent because they did not consider the change was 'acceptable employment'. This would be an absurd and impractical outcome.

[77] Of course, this case was not solely argued on the Club's legal right to alter Mr Crew's rosters under cl 8.2 of the Modern Award. Broader considerations of fairness were extensively debated. It should not be lost sight of that, in the exercise of all the Commission's powers and functions under the Act, the Commission is required to act according to equity, good conscience and the substantial merits of the case (s 578). Reflecting on the Act's very title, this means to act fairly in all the circumstances.

[78] In a case such as this, under s 120 of the Act, fairness cannot be viewed through the prism of what Mr Crew subjectively believes is fair for him, notwithstanding his undoubted caring responsibilities. The test is an objective one; See: Derole Nominees at 128. It is also apposite in this case, to stress that 'acceptable employment' does not mean 'identical employment'. In Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia, 21 November 2006 [PR974699] ('Feltex'), SDP Watson said at para [89]:

'[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.'

[79] In my opinion, the objective test involves the balancing of Mr Crew's circumstances with the Club's operational imperatives and the principles of fairness to other of the Club's Bar Supervisors. Mr Crew was offered special arrangements in which he had two fixed days off, worked only day shifts and would be provided with two to three weeks' notice of any roster change.

[80] Moreover, having regard to what was finally offered to Mr Crew, there is a real likelihood, that the other Bar Supervisors would suffer some detriment in having to work extra weekends and night shifts. Mr Crew himself recognised this likelihood to be a real issue in that he acknowledged he would be perceived to be more favourably treated.

[81] In VicStaff, Bissett C put the test under s 120 of the Act, this way at para [29] and [30]:

'29. The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

30. It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.'

[82] Before turning to the specifics of this case, I consider the authorities relied on by Mr Dusevic do no more than state the obvious; that is, in addition to the common factors of what might be acceptable employment, such as a similar rate of pay, seniority, similarity of work, location, hours of work, etc., there may be other relevant factors. Unremarkably, each case will be determined to its own particular facts and circumstances. I note that in Feltex, supra above, SDP Watson said at para [33]:

'[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter.'

Did the Club obtain 'other acceptable employment' for Mr Crew?

[83] There is no dispute that the Club 'obtained' other employment for Mr Crew. The Club was the 'strong moving (and only) force' in obtaining and tailoring that employment to Mr Crew's requests; See: Derole Nominees at 127-128. That being the case, the Commission need not be troubled by considering whether the Club 'obtained' the other employment. As both advocates agreed, this case essentially turns on the question of whether or not the employment was objectively acceptable.

[84] The undisputed characteristics of the other employment were:

• the same classification of a Grade 5 Bar Supervisor;

• inconsequential distance from home to the new location at Forster.

[85] Up to the point of Mr Crew's termination of employment, these arrangements were to be underpinned by a rotating roster in which Mr Crew would be required to work night shifts. However, as recorded elsewhere in this decision, after the filing of this application and the Club being provided with details of Mr Crew's caring responsibilities in taking his wife to fixed medical appointments, the Club modified its position. He was offered reinstatement with Mondays and Wednesdays off, but with him remaining on a rotating day shift roster, which may include day shifts on the weekend. Importantly, he would not be required to work night shifts and he would be provided with two to three weeks' notice of any change to his roster, in excess of the Award's notice requirements.

[86] Mr Dusevic submitted that the post dismissal offers made to Mr Crew were irrelevant. I disagree. It is plain that the Club was genuinely attempting to accommodate Mr Crew's specific requirements as to fixed days off, so he could take his wife to medical appointments. The details of these arrangements were not made known to the Club until after Mr Crew's dismissal. There was nothing improper or disingenuous in those offers. I am satisfied that the Club was genuinely keen to retain Mr Crew's services, albeit within reasonable operational boundaries. After all, the Club could have readily dispensed with his services and have made no further offers of employment and argue its pre-dismissal offers were reasonable and acceptable.

[87] Alternatively, the Club could have simply paid Mr Crew redundancy entitlements and that be the end of it. After all, it was not a huge amount of money and the Club could have saved all the time and cost invested in defending this claim by paying him out. However, I believe the Club was doing its utmost to balance its operational and human resource imperatives with Mr Crew's caring responsibilities, with the genuine objective of retaining his services.

[88] Tragically, Mr Crew's life and that of his family took a drastic and overwhelming turn, when his wife suffered a catastrophic illness in December 2012. To his great credit, Mr Crew's understandable, and only priority, is the care of his wife. He does so, seemingly with the practical help and support of a network of family and friends. They too are to be commended for their sacrifices.

[89] While there was no evidence of Mr Crew's financial circumstances, it may be inferred that he still needed to work in order to support his wife's recovery and rehabilitation. With this in mind, the Club acknowledged Mr Crew's need for a fixed roster of three days a week at Tuncurry in October 2013. For reasons beyond its control, this arrangement became impossible to sustain in mid-2015. In other words, this was not the first time Mr Crew had asked the Club to accommodate his caring responsibilities.

[90] However, from the outset of the present dispute, Mr Crew's position has not altered, and on one view, became more problematic for the Club as negotiations continued prior to and after his dismissal. This stance is to be contrasted with the various offers put by the Club over the relevant periods. Ironically, even Mr Crew acknowledged that his only proposal to settle his dispute with the Club - a fixed, ongoing weekday shift roster - would likely result in one of the main reasons why the Club could not agree to it - the effect on the morale of the other Bar Supervisors.

[91] Bearing this in mind, there may be some substance to Mr Turner's belief that Mr Crew really had no intention of working at Forster and would accept nothing less than being paid redundancy pay. While I am unable to make a specific finding in this regard, Mr Turner's belief seems corroborated by the following facts:

(a) From the outset, Mr Crew refused to even look at the new rosters prepared by Mr Webster. I accept that this was explained by the fact that the roster contained night shifts and as the Club knew he could not work night shifts, there was no point in looking at the rosters. However, Mr Crew appeared disinterested and unwilling to engage with the Club as to any compromise.

(b) At the meeting on 24 July 2015, Mr Turner asked Mr Crew if he would be interested in working three day shifts at Forster. At this point, he answered, 'No' and raised the likely discontent of other Bar Supervisors as the reason why he would not consider any day only shift roster. I do not accept Mr Dusevic's submission that the Club's position was not firm, so Mr Crew was entitled to reject it. Having said he would not be interested in day only shifts, there was little point in formalising a proposal to that effect. I believe Mr Turner was genuine in putting up the possibility, only to have it rejected.

(c) When the Club offered Mr Crew Mondays and Wednesdays off, as he had asked for, so he could take his wife to fixed medical appointments, Mr Crew's position reverted to his inability to work weekend shifts, notwithstanding he would receive notice of two to three weeks. This was in excess of the Modern Award's requirements.

(d) When the Club's final offer was made, the Union responded by reverting to Mr Crew's original claim of a fixed roster, exactly as he had worked at Tuncurry and added a claim for backpay, if Mr Crew was reinstated on that basis.

[92] Given this history, there must be some justification for a conclusion that Mr Crew was, at the very least, uncooperative and unwilling to meaningfully engage with the Club as to each of its improved offers. As the authorities make clear, this is a factor which may be taken into account in determining an application of this kind. As was said by the Industrial Commission of South Australia in Appeal Session in Re Milk Processing Award:

'Like the Australian Commission, we agree that, if employment of a suitable nature and returning a comparable remuneration can no longer be found or is not arranged for the employee by the employer, then it is appropriate to require special provision to be made. It goes without saying that any employee who unreasonably either declines such employment or fails to co-operate in mitigating any disadvantage in an appropriate manner can scarcely be heard to seek the same special treatment as those who do.'

[93] In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at page 129:

'The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.'

See also: Clothing & Allied Trades Union of Australia v Algray Pty Ltd (1989) 31 IR 365.

[94] For the aforementioned reasons, I am satisfied that the Club has discharged the onus it bears; See: Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 in satisfying the Commission that the offers it made to Mr Crew in respect to ongoing employment at the Forster site, was 'other acceptable employment', within the meaning of s 120(1)(b)(i) of the Act.

[95] Therefore, the Commission concludes that it is appropriate to make an order that the redundancy pay, otherwise payable to Mr Crew, pursuant to s 119 of the Act, be reduced to nil. A Determination to that effect will be published contemporaneously with this Decision.

Mr M Ushakoff of Clubs New South Wales for the applicant.

Printed by authority of the Commonwealth Government Printer

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