[2] As conciliation failed to resolve the matters Certificates were issued on 20 December 2004 in respect of each matter, pursuant to s.170CF(2) of the Act.

[3] The matters were listed together for arbitration and heard on 9 to 11 May inclusive.

[4] Mr G Dircks appeared with leave of the Commission for the applicants.

[5] Mr L Johns appeared with leave of the Commission on behalf of the respondent.

[6] The following witnesses gave sworn evidence during proceedings:

[7] Chiquita Mushrooms is a major supplier of the Australian market operating out of five farms. The two relevant farms to these matters are at Mernda and Yarrambat in Victoria.

[8] The terms and conditions of employment of the pickers (or harvesters) employed by the respondent are governed by the Chiquita Mushroom (Pickers) AWU Enterprise Agreement 2004 (2004 EBA).

[9] In February 2004 the Chiquita Mushrooms Health Team produced a report on the piece rate system and shed ownership by employees and recommended changes to the way employees worked.

[10] The 2004 EBA reflected those changes which in summary were:

• the piece rate system, because of associated OH&S considerations, was abolished;
• hours of work were restructured;
• the directly employed workforce was significantly reduced to a minimum of 120;
• the concept of shed ownership was abolished; and
• contractors were used to pick an unlimited number of "pre-packs" which is an increasing part of the respondent's business.

[11] It was said by the respondent that operational requirements are such that it is more efficient and cost effective not to directly employ labour.

[12] To meet the new environment the respondent in seeking to reduce its direct workforce offered voluntary redundancy packages and advised pickers that compulsory redundancies would be necessary if insufficient voluntary packages were achieved. This was done in consultation with the relevant union, The Australian Workers' Union (AWU). The voluntary packages offered separation payments in excess of those prescribed by the 2004 EBA but ultimately ten more redundancies were sought due to insufficient volunteers.

[13] A selection criteria for assessment was designed by the Human Resources Co-ordinator which was reviewed and finalised by the HR Manager and approved by the AWU. Assessments were made of all pickers by the Harvesting Supervisors and the Harvesting Co-ordinator. The criteria scores were then weighted to reflect management's desire to emphasise matters such as hygiene, team work and ability to accept change. Score cards were recalculated to reflect weightings and on 4 October 2004 the selection process was submitted to a consultancy for review and advice on selection. The consultant's report identified ten pickers for redundancy (which included the four applicants).

[14] Up to the last day Friday 8 October 2004, voluntary redundancies were being processed and three more came forward. The remaining seven were notified in interviews of the termination of their employment on 8 October 2004 and paid redundancy payments in accordance with the 2004 EBA.

[15] At the end of the interview each were introduced to a representative of One Force, the respondent's principal supplier of contract casual labour.

[16] The submissions on behalf of the applicants may be summarised as follows:

[17] The four applicants worked as pickers employed by the respondent. The majority of the workforce are now employed through One Force, a labour hire company. The applicants were direct employees who were made redundant on 8 October 2004. It was submitted that the applicants had "no inkling" they may be selected and were terminated in groups of two or three. The explanation given was that they had been assessed against a number of criteria, but they were not provided with the criteria nor with the detail of the assessment.

[18] They were told they could come back as labour hire employees and were introduced to a representative of One Force.

[19] One of the four, Ivka Kolenda, had been employed for twenty years and received awards on four occasions as an exemplary employee.

[20] Josephine Hodgson had sixteen years service including weekend watering employment in addition to week-day picking. She was told by her watering supervisor after termination that she could continue employment as a full-time waterer where there was a vacant position and was given a start date. The offer was subsequently effectively withdrawn.

[21] Elicia Jovanovski with four years service was approached by management prior to redundancy and was told she would have to take voluntary redundancy package or she would have to relocate to the Yarrambat site. She indicated to management she was agreeable to go to Yarrambat and hence she believed she was not a candidate for termination of employment.

[22] Josephine Hodgson alleges she was told after her retrenchment, by a manager that the reasons for involuntary redundancy were concerns certain staff might lodge Workcover claims.

[23] Donna Hodgson who had eleven years service asked to be given a copy of the assessment for her selection, but was told it was not allowable "by law".

[24] The termination letters imply the 2004 EBA required involuntary redundancies if the required volunteers were not achieved, when there is no such requirement under the EBA. All four received termination packages less than those paid to voluntary redundancies. On the day the redundancies took place, staff who expressed an interest in a voluntary package were told they were no longer available. All four applicants dispute the alleged poor assessments of them and it is conceded on behalf of the respondent that the applicants were not given an opportunity to respond to the reasons for their selection or the unfavourable assessments allegedly made.

[25] None of the applicants have been successful in obtaining work through the labour hire company although three have applied. This is despite One Force and other labour hire firms are advertising constantly for new employees.

[26] The respondent must first discharge the onus upon it that there was a genuine need for redundancy related to its operational requirements and secondly that the respective selections were sound, defensible, well-founded and objectively justified.

[27] The reasons given are set out in the termination letters based on a fictitious EBA requirement and additionally cannot be said to meet operational requirements.

[28] It cannot be established that there was a valid operational requirement consistent with management meeting the employer's obligations to employees.

[29] It was submitted the positions did not become redundant as they remain the same but paid via a labour hire company.

[30] The evidence will establish the four applicants were not the worst performing or least skilled employees when assessed objectively and their selection from the 120 remaining direct employees is not objectively justified.

[31] A summary of the submissions on behalf of the respondent is as follows:

[32] The respondent is the largest mushroom producer in the southern hemisphere, producing in excess of 320 tonnes of mushrooms each week. The respondent is the only vertically integrated fresh mushroom business in Australia, managing the entire operation from its compost farm to spawning laboratory through to transportation and marketing. Production is highly capital and labour intensive and technically oriented.

[33] The terms and conditions of employment of the pickers are governed by the 2004 EBA.

[34] A combination of a mandated workforce level of 277 and very restrictive work practices, like shed ownership, resulted in the respondent experiencing:

(b) a massive blowout in its WorkCover premium because the Chiquita Mushroom (Pickers) AWU Enterprise Agreement 2001 (the 2001 EBA) sanctioned work practices which were an OH&S risk.

[35] In February 2004 the respondent's health team produced a damning report on the then current work practices. The report demanded change in the way work was performed. The 2004 EBA represents a significant breakthrough in terms of changes.

[36] The differences between the 2001 EBA and the 2004 EBA meant that:

(a) the piece rate system and its associated OH&S problems was abolished;

(b) hours of work were restructured to also reduce OH&S risks;

(c) the directly employed harvesting labour force was reduced from 277 employees to 120;

(d) the concept of shed ownership was abolished; and

(e) contractors can pick an unlimited number of "pre-packs". This is an increasing part of business.

[37] While the 2004 EBA expresses the 120 employed pickers as a minimum, it operates as a maximum. The operational requirements are such that it is more efficient and cost effective to employ agency workers as casuals which provide greater flexibility, however any suggestion that direct employees have been replaced by indirect workers demonstrates a lack of understanding of the respondent's operations.

[38] It was well communicated to employees that the respondent was seeking first, to reduce its workforce by voluntary redundancies and then by compulsory redundancies.

[39] The respondent also consulted with the AWU keeping it informed. Every effort was made to obtain volunteers including offering a "sweetened" package.

[40] By October 2004 the number of pickers had reduced from 277 to 130 and ten more redundancies were needed to achieve 120.

[41] A selection criteria was designed by the HR Co-ordinator and reviewed and finalised by the HR Manager. AWU approved the selection criteria. Each of the Harvesting Supervisors and the Harvesting Co-ordinator were asked to complete assessments. The results were then weighted to reflect management's desire to emphasise the importance of matters such as hygiene, team work and the ability to accept change.

[42] On 4 October 2004 the entire process was submitted to an outside consultancy for review. A consultant was asked to provide advice about how to select employees for redundancy from the completed score cards. Ten pickers were identified including the four applicants.

[43] Even up to the last day voluntary redundancies were processed. By Friday 8 October 2004 three more volunteers came forward, leaving seven employees to be made compulsorily redundant. Each were notified on 8 October 2004 in interviews with the HR Manager, HR Co-ordinator and AWU representative. Interviews were conducted in small groups.

[44] In addition to their poor scores each of the applicants had received cautions and warning notices during their employment. Each received all of their entitlements in accord with the 2004 EBA. Each were introduced to a representative from One Force, the respondent's principal supplier of contract casual labour.

[45] There was a valid reason based on operational requirements. There was no continuation nor transfer of employment to One Force. The respondent does not direct One Force as to whom it can employ or place. To the extent that it is relevant and possible, procedural fairness was afforded in this case. If any procedural deflect is determined, it does not necessarily make the outcome harsh, unjust or unreasonable assessing "a fair go all round".

[46] In determining whether the procedure for termination was fair, the Commission should consider whether:

(a) employees were given as much notice as possible of the possibility of compulsory redundancies;

(b) objective, reasonable and justifiable criteria and procedures were, on balance, properly considered and fair;

(c) the selection criteria were on the whole, reasonable and fairly weighted, applied and prioritised; and

(d) the absence of any tangible discrimination against any employee.

[47] The applicants were given an opportunity to respond to performance issues during their employment.

[48] The respondent had appropriate consultation with the AWU. There is not necessarily a duty to consult nor is it necessarily significant if no opportunity was given to employees to comment on the basis for their selection.

[49] If there was any procedural defect this was because the respondent has a small HR function.

[50] The Commission should have regard to the generous level of redundancy payments and the offer of post termination assistance.

[51] The grounds identified under s.170CE(1) of the Act upon which all four applications were based, is that the terminations of employment were harsh, unjust or unreasonable. The application on behalf of Mrs Kolenda included the ground under s.170CM that there was a failure to give notice. Mr Dircks in submissions for remedy sought only compensation on behalf of all applicants (transcript PN 2830).

[52] In considering whether the termination is harsh, unjust or unreasonable the Commission is required to have regard to those factors set out in s.170CG(3) of the Act:

"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and

(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(e) any other matters that the Commission considers relevant."

[53] The Human Resources Manager gave evidence that the respondent had been experiencing heavy and unsustainable costs and a massive blow out in its WorkCover premium due to EBA sanctioned work practices (Exhibit J2 at 2.3). In response the respondent sought to change those work practices and to reduce the number of its directly employed pickers now covered by the 2004 EBA and to supplement its workforce with casual pickers employed by a labour agency One Force. The 2004 EBA prescribed the minimum number of directly employed pickers as 120. The respondent determined to apply it also as a maximum comprised of teams of 30 (Exhibit J5 at 6). It was argued that the supplementary indirect workforce allowed the respondent more flexibility in how they were allocated work and hours.

[54] Similar to comments in Nettlefold v Kym Smoker Pty Ltd ((1996) 69 IR 370) I would observe that successful management of a business may depend upon the control of labour costs and the ability to engage and release labour as and when required, subject of course to proper management. Proper management can include inter alia obligations upon the employer to treat its employees fairly. There is therefore an onus of proof on the employer to show that a reason it alleges to be operational requirements in fact was justifiable or is objectively defensible (Kerr v Jaroma Pty Ltd t/as Treasury Motor Lodge (1996) 70 IR 469).

[55] I am satisfied on the evidence that the changes which led the respondent to reduce the number of directly employed pickers were for legitimate operational requirements and were approached in consultation with employees and their union.

[56] In Intercontinental Ship Management Pty Ltd v Culpeper (23 March 2004 [PR944547]) the Full Bench in summarising the proper approach to be taken quoted with approval that:

"It is not the Court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee's capacity or conduct. (Walton v Mermaid Dry Cleaners Pty Ltd, Moore J, 142 ALR 681)"

[57] It follows that I do not agree that the actions to achieve its operational requirements were those of an incompetent or capricious management. They were actions taken within the terms of the 2004 EBA after negotiations with the AWU and a vote of a genuine majority of employees. Those operational requirements provided proper grounds for the reduction in employee numbers.

[58] Whether or not it was appropriate for management to regard the 120 minimum pickers number as a maximum was a matter for management prerogative. Mr Dircks conceded;

"We accept that there were workplace changes such as shed ownership and changes to piece work arrangements. That were a legitimate issue."

[59] In my view the categories chosen for assessing the capacity and conduct of pickers were fair and objective. It was unchallenged that the AWU lent its endorsement to those categories as did the supervisors, co-ordinator and the consultant. And whilst the AWU appears not to have been approached for similar endorsement on the weightings applied by management to the raw assessment data or the consultant's recommended selection process, it was invited and did attend the termination interviews and it was not put to the Commission that any of the pickers selected were objected to by the AWU as inappropriately selected.

[60] I am satisfied that the Harvesting Supervisors were appropriate assessors and on the evidence that they conscientiously and objectively undertook their assessments. Their assessment scores based on their own knowledge and experience in supervising the pickers were reasonably relative.

[61] I do not believe that the assessments were invalidated or distorted to the detriment of those assessed by allocating a relatively neutral assessment of 3 out of 5 where assessors did not have recent or appropriate first hand knowledge of individual picker's work. Nor do I give any weight to the hearsay evidence that any of the applicants were selected because of a potential for a WorkCover claim. Eleven employees on WorkCover were specifically deleted from the selection process.

[62] Two pickers were not rated by the Harvesting Co-ordinator but this would not have displaced any of the applicants from selection (Exhibit J14). Michelle Johnson was rated 22 and deleted because she was on WorkCover leave. Kata Strucelj did not fall into the lowest 20 rated (rating 50, 65 and 73 with Supervisors). It was not submitted whether she was on WorkCover leave or not but this may well explain why she was not assessed by Ms Curtis. I am satisfied the anomalies in two of the supervisors' assessments in respect of a 1.5 multiplier instead of 2 for Josie Hodgson and Elicia Jovanovski referred to in submissions also had no direct adverse affect (transcript PN 2878).

"I think that the way that the process was done, is that it was very fair, very objective, given that there was only a small amount of employees in the business that were unfortunately that were having to be made involuntarily redundant." (transcript PN 1379)

"I was quite confident from a statistical point of view is that this was, as I stated, valid, reliable, objectively undertaken, as best as it could be." (ibid PN 1385)

"I was quite impressed of the way that Mr Agostino had stepped back from the process and allowed me to ask whatever I wanted to in trying to ensure that it was reasonable or the whole exercise was done in a reasonable manner." (ibid PN 1424)

[64] The instruction given to the consultant to give priority to the Harvesting Co-ordinator's scores seems unnecessary except where perhaps assessment scores were close and determinative. On balance I can immediately accept that selection for the termination of employment of three of the four applicants was objective and fair. The one exception is Ivka Kolenda who appears prima facie to have been excessively downgraded and subjectively assessed to appear at position (selection 6) on the Harvesting Co-ordinator's list in order of termination of employment when on the three direct Harvesting Supervisors' assessment lists she is rated 57, 76 and 104 respectively. On applying weightings Ms Kolenda scored 51, 60 and 68 respectively with the supervisors and 49 with the Harvest Co-ordinator, a somewhat closer relativity.

"These weightings take into account the Companies view (Human Resources Manager in consultation with other Senior Management) of importance of one criterion over another and in relation to each other." (Exhibit J2 attachment JA9 Report).

[65] The weightings selected were a managerial discretion. The decision to give priority to the Harvesting Co-ordinator's "list of lowest performing employees" was the consultant's recommendation (ibid) which was applied. The Harvesting Co-ordinator had not seen the supervisors' grading of employees when she did her assessments. The consultant reported that;

"Initially I had thought there may be concern with the Harvesting Co-ordinator being able to grade all employees but after discussions with her, I was quite confident with how she had conducted herself." (ibid Findings)

"After my second interviews with the Harvesting Co-ordinator and Supervisors I am confident that all conducted themselves in a professional and objective manner as reasonably possible. No comments were made as to changes, weightings, additional items to be included or excluding and overall nothing in my opinion that would have caused change to the outcome of employees who scored the lowest score." (ibid)

[67] Having heard the sworn evidence of the consultant Mr Renehan, the Harvesting Co-ordinator and all three Harvesting Supervisors and examined the selection steps set out in Exhibit J14, I am satisfied that the selection of the four applicants and others for redundancy were reasonably objective in the circumstances and fair. The AWU representing employees was consulted and involved throughout. To the extent that final selection was subjective, I accept that a level of evaluation and balance was required and that the only inference of discrimination was that reflected by the weighting of certain criteria which in the circumstances of the respondent's operations I accept was a legitimate consideration.

[68] In Peck and others v ANI Bradken [Print Q0819], Hoffman C stated in regard to redundancies, that "If the selection process is fair, then a valid reason for the redundancies may exist, based on operational requirements [s170CG(3)]". He went on and found that a valid reason includes that it is sound, well founded and defensible on an objective analysis of the facts and set six tests of criteria to determine if selection was objective, reasonable and justifiable. These are met in my view in the instant selection process.

[69] As to objectivity in assessment, the Macquarie Concise Dictionary relevantly defines "objective" as: "free from personal feelings or prejudice; unbiased". I accept in assessments of this kind, a personal evaluation may be involved and assessments based on different temperaments and relationship experience may not unusually differ, but in the instant matter four assessors gave balance to the objectivity, and none of the employees selected by the consultant were personally known to him. His selection was based on statistical assessments.

[70] I find that the respondent had a valid reason for termination of the employment of all four applicants based on operational requirements (Cosco Holdings v Thu Thi Van Do ((1997) 77 IR 94 Norththrop J IRCA) and to the extent that selection related to capacity and conduct, that was also reflected in the assessment criteria (s.170CG(3)(a)).

[71] A valid reason per se does not of itself satisfy the tests in respect of a termination that is harsh, unjust or unreasonable. A valid reason is only one of a number of separately specified matters which the Commission must have regard to (Windsor Smith v Liu and Others, Full Bench Giudice P, Polites SDP and Gay C, 13 July 1998 [Print Q3462] s.170CG(3) refers).

[72] I accept on the evidence that there was a consultation process in which all employees understood that if the required number of voluntary redundancies were not achieved, involuntary redundancies would be inevitable. In that sense it can be said that all four were aware of the reason for involuntary terminations. An exception can be said to be that of Elicia Jovanovski who gave evidence that she believed she had the option of working at Yarrambat rather than selection for redundancy. I however accept the evidence of Mrs Marshall that this was misconstrued and not the case (transcript PN 1787).

[73] The only opportunity the applicants were given to respond to the reasons for their selection in so far as it was an assessment of their capacity or conduct was at their termination interview. Understandably they were not emotionally in circumstances which were conducive to challenging their selection, albeit that their union was in attendance, nor were they able to see and challenge the assessments leading to their selection. In my view that was unfair even if in the event it may not have led to a reversal of management's selection decision. Although this cannot be said with absolute certainty, for example in the case of Ms Kolenda, she may have been able to persuade Ms Curtis that her assessment of her was too severe and should be reviewed. This is because the assessments reflected their respective capacities or conduct.

[74] Whilst the evidence disclosed a small number of cautions and warnings in respect to some individual applicants, the evidence was that the Harvesting Co-ordinator and Harvesting Supervisors generally refrained from formalising their complaints on the basis of favouring a harmonious working relationship. If this was so, in my view that is both a defect in their assessment process, since pickers can hardly be expected to improve their performance to the required standard, and not persuasive evidence of the degree of non-compliance with company policy.

[75] Consistent with the above the dissatisfaction of management with performance is not supported by sufficient evidentiary material and that which was provided was challenged by the applicants. In terms of the reflection of unsatisfactory capacity or conduct there was no opportunity in the process for selection for redundancy, for the applicants to contest the evaluations or proper consideration afforded to the applicants. Nor was there persuasive evidence of ongoing formal monitoring of performance issues. The evidence was that where there was alleged rejection of their work product, it was corrected without always bringing it to their attention. I think it follows that they were not apprised that their assessments would be lower than other pickers and would lead to involuntary retrenchment.

[76] In my view no case can be made or sustained that the size of the enterprise or undertaking impacted on the procedures followed in effecting the terminations. There was a Human Resources Manager and Human Resources Co-ordinator on site, and with the assistance of an outside consultancy, there was adequate expertise to ensure an appropriate, "good and considerate" process, discharging the respondent's obligations to its employees facing retrenchment.

[77] The years of service of the applicants were as follows:

Such terms of employment are of serious consideration when contemplating termination of an employee's service. This is particularly so given that two of the four are mature aged women likely to face great difficulty in finding future employment. All four received payment in lieu of notice (Exhibit J2 attachment JA14) and all received their termination entitlements in accordance with the 2004 EBA. However none were apparently given the chance, when faced with certain employment termination, to opt for the voluntary redundancy package, notwithstanding that voluntary redundancies were still being accepted up to the date of their termination interviews, and that this approach was suggested by the AWU (Exhibit J2 attachment JA7). Such an offer while not an (EBA or Award) entitlement, may have been a kinder separation gesture, particulary given the suddenness with which all four applicants were confronted with termination. Three of the applicants had considerable experience under the previous and unique autonomous team culture and were entitled in my view to better and more sympathetic treatment.

[78] I draw no inference in terms of Jones v Dunkel ((1959) [1959] HCA 8; 101 CLR 298) from the fact that Mr Frank Leo of the AWU was not called to give evidence. There was sufficient common ground and collaborative evidence to support me in that regard.

[79] In summary of my view of procedural fairness, the applicants should have been shown the assessments of their work, they should have been allowed to challenge those assessments and given that there were only seven involuntary redundancies, with voluntary redundancies up to the day of the applicants' termination, the failure to offer the voluntary package option again at that point, as an action of a considerate employer in response to significant employment service, I am satisfied denied them procedural fairness.

[80] In terms of the above issues relating to procedural fairness, I find that having regard to the requirement to ensure that a "fair go all round" is accorded to the employer and employees both, that on balance, a case has been sustained, on the basis of lack of procedural fairness, that the termination of all four applicants was harsh, unjust or unreasonable.

[81] Having found that there was a valid reason for the redundancies and that the selection process was fair and objective, it would be inappropriate to apply a calculation for compensation based on Sprigg v Paul's Licensed Festival Supermarkets [Print R0235] or similar decisions.

[82] I find it is appropriate in the circumstances of this case to award a measure of compensation.

[83] In determining the level of compensation I note first of all the summarised principles of Lacy SDP which he found should apply when determining whether a retrenchment benefit should be set off against any amount awarded in lieu of reinstatement, consistent with s.170CH(7). (Smith and Others v Moore Paragon Australia Ltd, Lacy SDP [PR926979] 23 January 2003 at para 117). Specifically he found that;

"where an harsh, unjust or unreasonable termination of employment has led to the applicant receiving a retrenchment benefit she or he otherwise would have received if the termination was not harsh, unjust or unreasonable, it should not be deducted from any amount to be awarded in lieu of reinstatement."

[84] Accordingly I determine that any compensation awarded should be in addition to redundancy payments received.

[85] In determining the amount of compensation in lieu of reinstatement, the Commission is required to consider all the circumstances of the case (s.170CH(7)).

[86] s.170CH(7)(a). It was not represented to the Commission that an award of compensation would have any adverse affect on the viability of the respondent's business nor do I expect that it would.

[87] s.170CH(7)(b). All four applicants had significant employment service and before the operational changes had unique team autonomy as to the performance of their work, and as a consequence their hours worked over those years.

[88] s.170CH(7)(c). I have already indicated above that while the employer had no obligation to do so, it could have as a good and considerate employer, (having regard to their lengthy service, the acceptance of other voluntary redundancy acceptances right to the termination date and the fact that retention of those handful of involuntary redundancies for a further brief period, may have led to obviating such need), offered the four applicants the voluntary package in lieu, as an act of grace.

[89] s.170CH(7)(d). There was a voluntary redundancy program to mitigate the potential loss but having selected the applicants the only other effort made was to introduce them to a representative of One Force, which on the evidence at best where they applied only added their names to a long list of casuals available for work. Two of the applicants registered with One Force and on the evidence found no employment via that avenue with any employer. Both were said in evidence by Ms Hoverley to have been overtly critical of the respondent. This might in the circumstances of their employment years and the termination of their direct employment, not seem all that extraordinary, but that should not rule them out for work with another employer. This did not eventuate nor was a continuation of Josephine Hodgson's weekend watering job offered to her.

[90] s.170CH(7)(e). In my view it was not outside the bounds of further consideration of extending the period for voluntary packages, given the small number of those left for involuntary retrenchment and the fact that the 2004 EBA set 120 direct employees as a minimum. Given that a number of employees were on WorkCover leave, the retention of 7-10 employees could have added a protection against breaching the agreement minimum and provided a small support team likely to disappear over time.

[91] In all of the circumstances I am satisfied that I should award compensation to all four applicants. Having considered all that was before me and the requirements of the Act, including "a fair go all round" to both employees and employer, I have determined that the compensation to be ordered should be in addition to their respective termination payments already paid, an amount equivalent to what they would have received had they accepted a voluntary redundancy package. I so order.

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