19. Accordingly, the Commission would find that the Respondent failed to meet its obligations to consult under clause 8 of the Enterprise Agreement."[14]

• [32] The Respondent's Closing Submissions on the issue of consultation were as follows:

"4. DHL's primary submission is that the consultation clause set out in clause 8(a) to (c) of the Western Sydney EA did not apply, on the basis that DHL did not make a "decision" to implement any change; and if there was such a decision, it was not a decision to make a "major change" to any of the matters with which the provisions are concerned, within the meaning of clause 8(a)(i) as understood with reference to similar clauses in other industrial instruments.

Given the particular terms of the Applicant's employment contract, DHL did not make a "decision" to implement any change within the meaning of clause 8(a)(i) of the Western Sydney EA

5. For the reasons set out at [14] to [16] of DHL's Opening Submissions (CB 21 - 22) and [4] to [8] of DHL's Reply Submissions (CB 39 - 40), DHL did not make a "decision" to implement change. The loss of the Stuart Alexander contract had the automatic effect that the roles specifically employed to do the Stuart Alexander work were not required.

6. Nothing in the evidence supports the Applicant's proposition that DHL made a 'decision' to implement change. To the contrary:

(a) the Applicant acknowledged that the ending of the Stuart Alexander contract was a decision made by the client;

(b) Diane Shamsi gave evidence, consistent with the terms of the Applicant's employment contract, that the Applicant was employed as storeperson specifically to perform work for the Stuart Alexander contract, and this was not challenged; and

(c) no evidence was led, or argument put, to the effect that the employment contract should not be interpreted in accordance with its express terms based on ordinary contractual principles of construction.

7. It follows that DHL has made out its submission that when the Stuart Alexander contract was lost (due to the decision of Stuart Alexander), the jobs attached to it were redundant, without DHL having to decide to "make" them so: DHL's Reply Submissions at [8] (CB 40). Where employees' jobs are inextricably linked to a particular client contract, and that contract is lost, their jobs are redundant as a result of the terms of engagement. There was no additional or intervening decision to be made.

8. The Applicant says at [4] of his Closing Submissions that "Loss of work does not automatically mean a job is made redundant. A decision by the employer is still required in order to make the job redundant because there has been a loss of work. The Respondent had the ability to direct the Applicant to perform work in some other capacity but instead they have made the decision to make the Applicant's job redundant when the contract was lost."

9. This argument contains a grain of truth and two erroneous premises. First, whilst it is correct to say that loss of work does not automatically mean a job is made redundant in all cases, that raises a further question: in what circumstances will loss of a client contract make a job redundant? Here, the employment contract provided that the job was to work on the Stuart Alexander contract only, not to work as a storeperson generally at DHL. It follows that without the Stuart Alexander contract, there was no job to be performed and the Respondent did not require the job to be performed by anyone.

10. Secondly, the Applicant says that DHL had the ability to direct him to perform work in some other capacity. No explanation or support is provided for this statement. There is no basis for it in law. Absent other authorisation, DHL could not direct the Applicant to do anything outside the scope of his employment contract, which concerned exclusively working under the Stuart Alexander contract. This erroneous premise that DHL had the ability to direct the Applicant to perform work in some other capacity is not to be conflated with the statutory obligation to seek to redeploy the Applicant. That is an obligation which finds its source in the FW Act, not the terms of the employment contract.

11. The only provisions of the Western Sydney EA which deal with redundancy and redeployment are clause 16 (which provides that DHL "will seek to avoid redundancies" and goes on to deal with process requirements and severance entitlements), and clause 39, which is dealt with at greater length below (see from paragraph 31). Insofar as it was suggested to Ms Shamsi in cross examination that clause 12.4.3 of the Western Sydney EA (CB 108) supplied DHL with the power to redeploy employees unilaterally to other work, any such submission cannot survive scrutiny of that provision. Clause 12.4.3:

(a) requires that employees "comply with all reasonable requests to transfer to another location", provided that it entails no more than 30 minutes' additional travel time;

(b) as such, supplies no absolute right even to employees to another location; and

(c) in any event, deals with changes in location only, rather than an employee's job.

12. The Western Sydney EA sets up a framework for employees to move to a site other than where they are initially engaged, including one not named in clause 4(a), if this is necessary to perform work on the contract they are employed to service. It does not confer any right to unilaterally move them to a different job. Nor did the Applicant's contract. DHL was not at liberty to determine that the Applicant should work elsewhere, such that it had a choice as to whether his job would be redundant. The job simply was redundant.

13. The decision in Workpac Mining Pty Ltd v Botiki [2021] FWCFB 3325 (relied on by the Applicant at [5] of his Closing Submissions) does not assist the Applicant. In particular, the Applicant relies on the following passage at [27].

...there is nothing unusual about major changes in a business occurring in response to a decision made by an external client affecting the demand for the business' services; this may occur in a range of industry contexts, not just the labour hire industry, and it has never been taken to mean so far as we are aware that the major change has occurred absent any decision being taken by the business.

14. This passage must be read with reference to the particular facts of the case. In Botiki, the employer did make a decision to make major change. The employer decided to reduce its workforce by 23 (some 31%) and selected 23 roles for redundancy in response to a reduction in production by a client: Botiki at [3] and [4]. A decision by an employer to reduce its workforce and selecting those roles to be impacted following a decision made by a client, is quite distinct from the loss of an entire contract to which jobs are inextricably linked. In the latter case (the situation at issue here), no decision is required for the jobs attached to that contract to be redundant. In the present matter, the question was not "should these roles be made redundant", as the Applicant suggests; rather, it was "these employees' roles are redundant; can we place them into another role?" Where (as here) the employer has no right to change the nature of the employee's job, the question of moving them is solely a matter for the redeployment criterion in s 389(2) of the FW Act. To conflate this with the issue of whether the employer made a decision would, with respect, lead the Commission into error.

There was not a "major change" to production, program, organisation, structure or technology within the meaning of clause 8(a)(i) of the Western Sydney EA

15. DHL's Opening Submissions at [18] (CB 22) and Reply Submissions at [10] (CB 40 - 41) are repeated. There is no evidentiary basis to find that there was a major change to production, program, organisation, structure or technology at the 52 Holbeche site or at DHL as a whole. Even if the scale of a change renders it "major" (which is denied in this case), it must additionally be one to "production, program, organisation, structure or technology": Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99, 248 FCR 18 at [316] to [317] per Rangiah J; see also at [184] to [186] per Jessup J.

16. The Applicant's proposition at [23] to [25] of his Opening Submissions (CB 47) (that the loss of the Stuart Alexander contract and redundancy of the jobs performing that contract was a change to production or organisation) is not supported by any evidence; nor indeed is it explained beyond the level of bald assertion. DHL's third party logistics business did not change in terms of its production (more accurately, the delivery of third party logistics services and the manner of their delivery) or the organisation of the business. No direct evidence was led by the Applicant or Jonathon Dixon to this effect. No questions were put to DHL's witnesses about any such change to production or organisation, let alone why it should be considered "major". The Applicant's argument about this aspect should not be accepted."[15]

Applicant's Closing Submissions In-reply - consultation

• [33] Finally, the Applicant made the following Closing Submissions in-reply:

"2. Clause 8 of the DHL Supply Chain (Australia) Pty Limited Consumer Western Sydney Enterprise Agreement - New South Wales 2019 ('the Enterprise Agreement') applied in the circumstances of this case because there was a decision made by the Respondent to make the Applicant's job redundant and then to dismiss him.

3. The Respondent in their submissions reference the Applicant's contract of employment. The Respondent has filed a letter dated 6 May 2019 which confirms the Applicant's transfer to perform work on the Stuart Alexander contract. This letter refers to a letter dated 2 January 2008, which was filed with the Applicant's statement. The letter dated 2 January 2008 states "All other terms and conditions of employment are in accordance with your contract of employment...". The contract of employment referred to in this letter has not been produced by the Respondent.

4. There is nothing within either of these letters or the Enterprise Agreement which explicitly prevented the Respondent from directing the Applicant to perform work on another contract other than the Stuart Alexander contract.

5. The Applicant maintains that he was employed to work as a Storeperson for the Respondent, not just to perform work on the Stuart Alexander contract. The letters dated 2 January 2008 and 6 May 2019 are simply letters confirming transfer of the Applicant's role within the Respondent's network.

6. Therefore, following the loss of the Stuart Alexander contract, the Respondent was required to decide whether to redeploy the Applicant to another role or whether to retrench him. They ultimately decided to dismiss him on 25 February 2021. Ms Shamsi provided evidence that the Respondent was required to decide what would happen to the employees who were performing work under contracts that had been lost.

7. Further, Ms Shamsi was questioned in relation to clause 12.4.3 and clause 5 of the Enterprise Agreement. Ms Shamsi's evidence was that these clauses do not enable the Respondent to direct employees to work at other sites which were only covered under the Enterprise Agreement. The Applicant submits that the interpretation provided by Ms Shamsi is incorrect. Clause 5 contemplates situations in which employees may be directed by the Respondent to perform work covered by other enterprise agreements within their network and stipulates that they will not suffer a reduction in conditions, wages or allowances as a result.

8. The Respondent has attempted to impose this same interpretation on to the Enterprise Agreement as a whole. But this stipulation that the Respondent cannot direct employees to work at other sites under contracts for other clients does not exist explicitly or implicitly within the Enterprise Agreement. Ms Shamsi provided evidence that each warehouse services a different contract, meaning that if an employee was directed to perform work at a different warehouse in accordance with clause 12.4.3 then they could be performing work on a different contract.

9. The Respondent is attempting to manufacture an interpretation of the Applicant's terms and conditions of employment and the Enterprise Agreement that is incorrect in order to avoid their obligations under clause 8.

10. Further, the Applicant relies on the submissions filed 12 May 2021 at paragraphs [19] - [25] in relation to the question of whether there was a major change to production or organisation. The Applicant reiterates that clause 8 of the Enterprise Agreement did not apply to the entire workforce of the Respondent, it was only applicable to the three sites named at clause 4(a). Consequently, whether a "major change" occurred must be considered in the context of the affected employees at these three sites. Ms Shamsi provided evidence that there were approximately 15 to 20 employees working under contracts other than the Stuart Alexander contract at 52 Holbeche in January 2021. At 227 Walters there were approximately four employees working under the Enterprise Agreement in January 2021.

11. There was a change to the production of the Respondent's enterprise because production in this case refers to the provision of third-party logistics services. When there is the loss of a contract and the closing of a significant part of a warehouse, this is a change to the services provided by the Respondent. Considering Ms Shamsi's evidence as to the number of employees at 52 Holbeche and 227 Walters, referred to above in paragraph 10, the redeployment or retrenchment of 13 employees from 52 Holbeche was a major change. Based on Ms Shamsi's evidence, half of the employees at 52 Holbeche were going to be redeployed or retrenched following the loss of the Stuart Alexander contract.

12. This is also a change to the organisation of the Respondent's business because the location of where work covered by the Enterprise Agreement was being performed was significantly altered by the redeployment or retrenchment of the affected employees. The displacement of 13 of the employees at 52 Holbeche is a significant alteration to the way work is performed at one of only three sites covered by the Enterprise Agreement. In this context, this is a major change to the organisation of the Respondent's enterprise.

13. Considering the above, clause 8 was applicable in this case and therefore the Respondent was obliged to consult with the Applicant in relation to the decision to make his job redundant and dismiss him."[16]

Consideration - Did Clause 8 of the Agreement in relation to consultation apply?

• [34] The Agreement covered and applied to the Applicant's employment at the time of his dismissal.

• [35] The coverage of the Agreement encompasses employees of the Respondent, not covered by any another enterprise agreement (EBA Exclusion), who perform warehouse and distribution work at one of the following three worksites:

(a) 2 Millner Avenue, Horsley Park, New South Wales (HP site);

(b) 227 Walters Road, Arndell Park, New South Wales (AP1 site); and

(c) 52 Holbeche Road, Arndell Park, New South Wales (AP2 site).[17]

• [36] The Respondent submits that Clause 8 of the Agreement has no possible application to the Applicant's redundancy. I reject this submission, and in doing so, make the following findings:

(a) Whilst the change at the AP2 site arose from SA's decision to cease its contract with the Respondent, the decision to make any change, and the scope of the change to be made, was squarely the prerogative of the Respondent. In other words, the changes made at the AP2 site were determined by the Respondent. In my view, the fact that any change to the Respondent's operations flowed from the loss of a contract with a third party does not alter the fact that any decision to make changes at the Respondent's workplace (i.e. at the AP2 site), flowing from the loss of the SA contract, was a decision of the Respondent.

(b) the changes to be made at the AP2 site were a major change in the "organisation" of the workplaces covered by the Agreement, which were likely to have significant effects upon relevant affected employees. I make this finding having regard to the following facts:

(i) the Agreement covers the Respondent's HP, AP1, and AP2 sites. It does not cover or apply to the whole of the Respondent's business operations or sites, nor does it cover or apply to the roughly two thousand operational employees who work to deliver the Respondent's relevant warehouse and distribution services;

(ii) there is no dispute between the parties that changes to the operational requirements of the Respondent's workplace gave rise to the Applicant's (and other employees') job no longer being required to be performed by anyone (see paragraph [20] of this decision);

(iii) Sixteen of 24 roles at the AP2 site were, or were likely, impacted by the change, i.e. being more than a majority of relevant employees at one of the three sites covered by the Agreement;[18]

(iv) the significant reduction in the number of roles required to perform work at the AP2 site is a change in the manner in which work is organised at the AP2 site, again, being a change to the manner in which work is organised at one of the three sites covered by the Agreement; and

(v) the definition of "significant effects" sets out inclusive, not exclusive, examples. There can be no suggestion that the reduction of 16 roles at the AP2 site, giving rise to termination of employment, the elimination or diminution of job opportunities and job tenure (including in terms of Agreement coverage), and the transfer of employees to other work locations (voluntarily or by direction), falls within the definition of significant effects under clause 8(a)(ii) of the Agreement.

• [37] I note that my findings in the foregoing paragraph are consistent with the decision of the Full Bench of this Commission in WorkPac Mining Pty Ltd v Peni Botiki, Nathan Calder, Craig Kedwell, Wayne Powell and Francisco Valdivia,[19]

Consideration - Did the Respondent comply with Clause 8(b) of the Agreement in relation to consultation?

• [38] Having found that the consultation requirements under the Agreement applied to the dismissal of the Applicant, I must now determine whether the Respondent complied with same.

• [39] Whilst the Respondent engaged in an extensive redeployment process, to which consultation was a central attribute, I do not accept that the Respondent complied with the consultation requirements set out under Clause 8(b) of the Agreement. In this regard, I accept the Applicant's evidence that he was not advised during the redeployment process, and prior to his dismissal on 25 February 2021, that he would be made redundant should he fail to apply for and/or be successful in securing an alternative role. In my view, genuine consultation under Clause 8(b) of the Agreement necessitated the Applicant being told or put on notice that a likely or potential outcome of his failure to be redeployed into another role could lead to his dismissal for reasons of redundancy, and for him to be given an opportunity to consider his position in that regard, and provide feedback (including in relation to potential alternatives for the Respondent to consider prior to determining to dismiss the Applicant for reasons of redundancy).

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent's enterprise, or an associated entity of the Respondent?

• [40] Sub-section 389(2) of the Act provides that a person's dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or an associated entity of the employer.

• [41] In my view, the correct interpretation of subsection 389(2) remains as stated in Ulan Coal Mines Limited v A. Honeysett & Ors (Ulan Coal):[20]

"[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer's capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[28] ... [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer's enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee's residence and the remuneration which is offered".

• [42] The Respondent's Opening Submissions, regarding whether it would it have been reasonable in all the circumstances for the Applicant to have been redeployed, were as follows:

"21. The reasonableness of redeployment for the purposes of s 389(2) of the FW Act is assessed as at the time of the dismissal: Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578, 199 IR 363 (Honeysett) at [28]; Technical and Further Education Commission v Pykett [2014] FWCFB 714, 240 IR 130 (Pykett) at [35]. Relevant factors include any available position, the qualifications required to perform the position, the skills, qualifications and experience of the employee, the suitability of the employee for the position, the location of the position, the remuneration offered, and the willingness of the employee to be redeployed: Honeysett at [28], [33]. In assessing the reasonableness of redeployment it is necessary to identify the position or other work to which the employee could have been redeployed: Pykett at [34], [36], [38]-[40].

22. DHL made substantial efforts to redeploy the employees affected by the loss of the Stuart Alexander contract. Its HR personnel sought to identify any opportunities for employees, made them aware of these opportunities, and sought to directly place employees into these roles. They were not required to compete with external or other internal candidates. On the two occasions that an employee did seek work in an alternative position, they were promptly placed into it.

23. Mr Davison did not express any interest in these opportunities, notwithstanding the repeated requests that employees do so. He proposed one "solution" to the situation, and DHL explained that there was no role available in that area. He otherwise constrained the range of roles he was willing to accept to those under the Enterprise Agreement, and excluding an entire site, in such a way that that there was simply no role for him. Consistent with that:

(a) he did not express interest in any of the alternative roles identified by DHL; and

(b) there is evidence that he told persons at the site that they should not accept the roles that DHL was proposing, as they would receive a role on the Enterprise Agreement or a redundancy payment.

24. Mr Davison's situation was, in many respects, the same as several of the applicants in Gilbert v Asciano Services Pty Ltd [2015] FWC 364 (Gilbert) at [52], [59]-[60], [64], [70]-[72]. He knew that dismissal of redundancy was a possible consequence of the course he adopted and was apparently content with it when advised of the outcome and his redundancy payment. The fact he may subsequently have felt differently and made this application does not change the facts that existed at the time DHL sought to redeploy him: see also Gilbert at [51]-[52].

25. When it became apparent that employees were not interested in lower-paid roles, DHL went further still. It held discussions with managers (some of whom in turn spoke to customers) about whether additional roles could be found working on client accounts where employees would be covered by the Enterprise Agreement or another agreement regarded as comparable in the entitlements conferred. It was able to find seven such roles, which unfortunately was not enough for the 11 remaining employees whose jobs were redundant. Mr Davison was, unfortunately, one of those who did not receive a position."[21]

• [43] The Applicant's Opening Submissions regarding whether it would it have been reasonable in all the circumstances for the Applicant to have been redeployed were as follows:

"55. Section 389(2) of the Act provides that a dismissal will not have been a genuine redundancy if it would have been reasonable in all the circumstances for the employee to be redeployed in either the employer's enterprise or an enterprise of an associated entity of the employer.

56. The onus is on the Respondent to provide evidence to satisfy the Commission that

redeployment would not have been reasonable in all the circumstances.

57. When discharging their onus that they have sufficiently considered whether there was a job or position for a dismissed employee to be redeployed to, the employer can be expected to produce evidence which canvases the steps taken by them to identify other work which could have been performed by the dismissed employee.

58. The Respondent has provided evidence of lists provided to the employees of what were mainly lower paid roles. The Respondent has not provided evidence which canvases the steps that they took to determine that until 23 February 2021 there were no roles available that were covered under the Enterprise Agreement.

59. The Applicant was aware that there were other roles within the Respondent's enterprise that he could be redeployed to that would not require him to accept a lower pay rate. When the Respondent provided listings of roles at lower pay rates, the Applicant communicated to the Respondent that his preference was to remain on his higher pay rate under the Enterprise Agreement. It was reasonable for the Applicant to express this preference. The Applicant did not state explicitly that he would not ever consider transferring into a lower paid role.

60. The Applicant and the other affected employees made it clear that they held a preference to be redeployed into roles that were covered by the Enterprise Agreement. They did this by not applying for the lower paid roles suggested by the Respondent. Once it became clear to the Respondent that the Applicant and the other employees held this preference, the Respondent managed to find roles that were covered by the Enterprise Agreement. The Applicant was notified of the existence of these roles on 23 February 2021. The fact that these roles were not provided earlier even though they evidently existed calls into question the steps that the Respondent took in canvassing other work that could have been done by the Applicant.

61. Further, the Applicant did engage with the redeployment process that the Respondent had put into place. In particular, he applied for a role on 23 February 2021, but he did not receive a response.

62. When they dismissed the Applicant on 25 February 2021, the Respondent presumed the Applicant would not accept a lower paid role. This presumption seems to have been based on:

1. the Applicant's preference to be transferred into a role covered under the Enterprise Agreement;

1. the Applicant not having actively applied for a lower paid role.

63. When considering redeployment opportunities, employers should not presume that an employee will not accept redeployment to a role with lower pay.

64. Further, the Applicant's decision to not to apply for a lower paid role should not be interpreted as a rejection of these roles in light of the fact the Applicant was not aware that if he did not apply for a lower paid role then he would be dismissed. This distinguishes his case from the facts in Gilbert v Asciano Services Pty Ltd.

65. In light of the above and without an adequate consultation process in place, the Respondent's alleged consideration of redeployment opportunities isn't enough to establish that it was not reasonable in all the circumstances to redeploy the Applicant to another role within the Respondent's enterprise."[22]

• [44] The Respondent submissions in-reply, on the issue of redeployment, were as follows:

"13. The Commission could not, on the basis of the considerations set out in the Applicant's submissions, be satisfied that it would have been reasonable to redeploy Mr Davison.

14. First, the Applicant's argument here is premised on DHL bearing an onus to demonstrate that reinstatement would not have been reasonable in all the circumstances. Considerable care must be taken in imposing an impossible standard of definitively proving a negative. As the Full Bench held in Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125, 244 IR 252 at [25] and [32](1), a Respondent asserting a "defence" based on s 389 bears an evidentiary onus, not a legal onus that establishes which party prevails where the Commission cannot otherwise decide between the two. To the extent that Aralar v Rio Tinto Aluminium Ltd [2014] FWC 7376 might be taken to say anything to the contrary then DHL respectfully submits it is not correct; further, the authority it cites, Crema v Abigroup Contractors Pty Ltd [2012] FWA 5322 at [81], in fact refers specifically to an evidentiary onus.

15. The nature of an evidentiary onus is that DHL must meet "the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the [Commission]", or discharge "the burden of adducing evidence": Teterin at [26] and the authorities there cited. DHL has done that. It has led evidence from Diane Shamsi as to the steps she took, first to ascertain existing vacant positions and those that might be created, and then when it was clear that employees were by and large not interested in those roles, further roles that might be found or created.

16. Having done so and discharged the evidentiary onus, DHL does not fail because the Applicant has invited the Commission to speculate about what other roles might have been discovered: AS [60]. The task of the Commission is to identify a job, position or work the Applicant could have done, assessed at the time of dismissal: Technical and Further Education Commission v Pykett [2014] FWCFB 714, 240 IR 130 at [36]. If the Commission is satisfied that DHL has met its evidentiary onus, and there is no basis to find that there was such a job, position or work, then DHL must succeed. As the Full Bench said in Teterin at [32](2):

s.385(d)... requires that for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was not a case of genuine redundancy. It must follow that the applicant in an unfair dismissal case bears the risk of failure if the state of satisfaction required by s.385(d) cannot be reached. If the Deputy President considered the evidence insufficient to allow him to determine whether redeployment was reasonable under s.389(2), then (there being no issue with respect to the s.389(1) matters) he could not be satisfied that the dismissals were not genuine redundancies, meaning that the applications before him had to be dismissed

17. Similarly, in Jain v Infosys Ltd [2014] FWCFB 5595 at [35]:

It is apparent from the decision in Teterin, the question whether and the extent to which the legal concept of onus arises in relation to matters considered by a statutory tribunal such as the Commission is a difficult one. That said, in the context of the question whether a dismissal was an unfair dismissal in which there is also agitated whether the dismissal was a case of genuine redundancy, to the extent that there is a legal onus of proof or something analogous thereto, it rests with the applicant in the sense that the applicant bears the risk of failure if the satisfaction required by s. 385 including paragraph (d) is not reached

18. Going to the specific submissions, much of the Applicant's case turns on whether DHL adequately attempted to redeploy the Applicant: AS [58], [60]. That is not the applicable test. The question, as per Pykett, is whether there was a job, position or work that he could have performed. The short answer is that there was not. The Applicant was unwilling to accept roles under other enterprise agreements, and of the seven that might have been acceptable to him (only one of which he applied for), he was unsuccessful, such that it was no longer available at the time of his dismissal when the existence of an alternative job, position or work is assessed (Ulan Coal Mines Pty Ltd v Honeysett [2010] FWAFB 7578, 199 IR 363 at [28]; Pykett at [24], [35]).

19. The Applicant now says that his decision not to apply for lower-paid roles should not be interpreted as a rejection of those roles, because he did not know that he would be dismissed if he did not: AS [64]. This is a post-event justification. The Commission ought not accept that submission, because it ought hold that, in fact, the Applicant:

(a) was steadfast in his position that he would not accept a role other than on particular terms - namely, one covered by the Enterprise Agreement;

(b) only applied for one out of seven roles that were on terms equivalent or comparable to those he enjoyed; and

(c) knew retrenchment was a possible outcome, and one which was acceptable to him.

20. Finally, the Commission would err if it accepted what appears to be an invitation, at AS [65] to conclude that what is said to be an inadequate consultation process necessarily means DHL cannot establish that it was not reasonable to redeploy the Applicant. In addition to the submissions above regarding the applicable onus, the requirements of ss 389(1)(b) and (2) are distinct and ought not be elided."[23]

• [45] The Applicant's Closing Submissions regarding the reasonableness of redeployment were as follows:

"20. Clause 39 of the Enterprise Agreement needs to be taken into consideration when ascertaining whether it was reasonable in the circumstances to redeploy the Applicant. Clause 39 places on obligation on the Respondent to aim and take steps to find acceptable roles for affected employees when redeployment is required. An acceptable role for the Applicant would have been a role that was on the same pay rate and the Applicant made this known during his meeting with Ms Shamsi on 15 January.

21. The Respondent has provided evidence of lists provided to the affected employees of job opportunities that were primarily lower paid roles. The Respondent's evidence is ambiguous as to whether this constituted an attempt to redeploy the Applicant to another role. During the cross examination, the following exchange with Ms Shamsi occurred:

Ms Bolton: And until 23 February all of the roles that were placed on the board were for lower rates of pay than what [the Applicant] and other preserved rates employees were on, correct?

Ms Bolton: So it is the case then that until 23 February DHL only attempted to redeploy Mr Davison to a lower paid rate?

Ms Shamsi: No. This wasn't an attempt - this wasn't an attempt made by DHL, this was - this was transparency about what roles were available, and giving Mr Davison and three other affected employees the opportunity to apply for those roles and to express their interest to me directly.

22. Then when questioned as to whether she meant that the Respondent did not make an attempt to redeploy the Applicant, Ms Shamsi answered that yes, they did.

23. These inconsistent answers illustrate the ambiguity surrounding the redeployment process conducted by the Respondent. Simply posting job listings and advising employees that they can show interest in those jobs does not amount to a clear redeployment process. By doing this, the onus is placed on the Applicant to redeploy himself, which is contrary to s389(2) of the Act.

24. It was not until 23 February, just two days before the dismissal, that the Respondent found the seven roles covered under the Enterprise Agreement that would have allowed the Applicant to stay on his pay rate. The Respondent has therefore failed to take reasonable steps to find a role that was acceptable for the Applicant until 23 February, which was entirely too late.

25. The Applicant submits that he did not reject any of the roles provided by the Respondent in January and February 2021. The Respondent has consistently used language to indicate that affected employees were given the opportunity to apply for those roles. The simple fact that the Applicant did not apply for a lower paid role when he had assumed he was entitled to be redeployed to a role on the same pay rate cannot be seen as a rejection of the lower paid roles. The Applicant was never given the opportunity to specifically reject a lower paid role because he was dismissed before he was told that his only option left was to apply for a lower paid role.

26. The Respondent has not shown that it was not reasonable in all the circumstances to redeploy the Applicant, because they did not take steps to fulfill their obligations to find an acceptable role for the Applicant under clause 39 until 23 February. If they had taken the steps required under clause 39 earlier and there had been an adequate consultation process with the Applicant and the Union, then there is a very real possibility that the Applicant would have been redeployed to a role on the same pay rate under the Enterprise Agreement."[24]

• [46] The Respondent's Closing Submissions, on the issue of redeployment, were as follows:

"17. As set out at [16] of DHL's Reply Submissions (CB 42), the task of the Commission is to determine whether there was a job, position or work that the Applicant could have done, assessed at the time of dismissal: Technical and Further Education Commission v Pykett [2014] FWCFB 714, 240 IR 130 at [36]. If the Commission is satisfied that DHL has met its evidentiary onus (which usually includes canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee), and there is no basis to find that there was such a job, position or work, then DHL must succeed: Pykett at [37] and [40]; Jain v Infosys Ltd [2014] FWCFB 5595 at [35].

DHL made significant effort to identify other work which could be performed by the Applicant

18. The Commission heard compelling evidence concerning the significant effort made by DHL to re-deploy the Applicant over a period of seven weeks. This process commenced in early January 2021 (for reasons explained by Ms Shamsi) and included the following steps:

(a) Ms Shamsi had conversations with managers about vacancies in their teams, including whether vacancies could be created or whether casual positions could be converted to full time positions. Ms Shamsi explained that casual positions at DHL can usually only be made full-time with the permission of the relevant customer and with a revision of the contract, and so a number of managers had conversations with customers about whether this could be accommodated.

(b) Any additional roles that Ms Shamsi was advised of were posted to a DHL intranet page and on notice boards at the 52 Holbeche site and employees could contact Ms Shamsi directly to express interest in those roles. If they were suitable for the vacant role, Ms Shamsi would speak to the relevant manager and seek to place them in that role. The Stuart Alexander contract employees were not required to compete with internal or external candidates. Anyone who expressed an interest in a role prior to the 23 to 25 February 2021 selection process (discussed at paragraphs 18(f) and (g) below) was immediately placed into their preferred role.

(c) On 7 January 2021, a list of six available roles was posted on notice boards at the 52 Holbeche site and employees were asked to apply for roles that they were interested in. The Applicant asked about redundancy during this meeting, but did not express interest in any of the six available vacancies.

(d) On 15 January 2021, a list of 22 roles was posted on noticeboards at the site. The same day, Ms Shamsi made herself available at the 52 Holbeche site for one on one discussions with employees, and spoke to the Applicant about redeployment. During this conversation, the Applicant said words to the effect of "I'll go to 2 Millner Avenue and work on the Canon site.... I don't want to go to another agreement, I want my agreement. I also don't want to go to 227 [Walters]". The Applicant did not express interest in any of the 22 roles that were available and were posted that day. During cross examination, the Applicant acknowledged that he passed up six roles on this list that met all of his requirements except for preserving his rate of pay.

(e) 20 available roles were posted on 20 January 2021 and 30 roles on 28 January 2021. The Applicant did not express interest in any of these roles, but in cross examination acknowledged that 16 of these roles met all of his requirements except for preserving his rate of pay. This included a job that he was well qualified to perform, was suitable to him regarding its location, and paid only $4 per hour less before tax.

(f) In February 2021, Ms Shamsi continued to have conversations with managers, having been advised that the Applicant was telling others not to apply for roles "so that DHL will have to find them a job and give them the same rate or they'll get a redundancy." As a result of these continued efforts, DHL was able to find seven roles covered by either the Western Sydney EA or another EA with comparable rates of pay. These were posted on 23 February 2021 along with an updated list of other vacancies. The Applicant expressed interest in only one storeperson role contained on the former list of roles, which was covered by the Western Sydney EA (a role at the 52 Holbeche site), but acknowledged in cross examination that eight others posted this day met his requirements.

(g) On 24 February 2021 all of the Stuart Alexander contract employees were advised that they would be interviewed for all of the roles. On 25 February 2021 these interviews were carried out, there being seven roles covered by the Western Sydney EA and 11 Stuart Alexander employees to be redeployed. The Applicant, who was described by Daniel Cassar as "coming across in a way that he did not take too much care in the process", was one of the four employees who was not selected for the seven available roles covered by the Western Sydney EA.

19. The Applicant's suggestion at [20] to [26] of his Closing Submissions that DHL's redeployment process was somehow not redeployment (or was not consistent with clause 39 of the Western Sydney EA) is plainly misconceived. The fact that employees were required to express interest in open positions does not make this process "ambiguous" or something other than redeployment. Anyone who expressed an interest in a role prior to the 23 to 25 February selection process was immediately placed into their preferred role without a selection process.

20. DHL's redeployment process was perfectly consistent with the well-understood concept of redeployment, see for example:

(a) Sajan v Amdel Pty Ltd [2013] FWC 4784, where the employer's redeployment process involved providing employees with a list of available vacancies (most of which had been publicly advertised) and inviting the employee to express interest in the available roles (see [15], [48], [49], [55] and [58]);

(b) Madan v Metcash Trading Ltd [2021] FWC 3033, where employees were invited to express interest in any suitable vacant positions, and the employee's manager took steps to give the employee a list of vacancies and source job descriptions for roles they may be interested in (see [30] to [34]); and

(c) Matete v InfraBuild Constructions Solutions Pty Ltd [2020] FWC 6252, where the employee was advised that the employer operated a redeployment program, but the applicant did not express interest in redeployment or engage in this program deciding to part ways immediately. In this case, the Commission did not consider whether any particular positions were reasonable redeployment opportunities as it was found that the applicant had decided to take up the offer of redundancy while aware that there was a process he could engage in to seek redeployment (see [47] and [48]). Of particular relevance to this matter, the Commission stated at [40]:

Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.

21. DHL cannot be criticised for setting up a process whereby it would only seek to redeploy employees into a role they actually wanted. Indeed, DHL could not do what Mr Dixon suggested in cross examination and force people into lower paid roles (see paragraph 33 below). The suggestion that it could and ought to have done so, regardless of whether an employee had expressed any interest in a job, should be seen as what it is, namely, a post hoc justification for the Applicant's and Union's approach to the redeployment process, which backfired badly because it was based on a misreading of the Western Sydney EA (see paragraphs 33 to 35 below) and reckless advice which defied common sense.

22. DHL made significant effort to identify other work which could be performed by the Applicant and has met its evidentiary burden.

There was no job, position or other work that the Applicant could have done at the time of his dismissal

23. There was no job, position or other work that the Applicant could have done at the time of his dismissal, because the Applicant was not willing to accept a role that was not covered by the Western Sydney EA or otherwise at his preserved rate of pay.

24. The starting point here is that the Applicant was dismissed on 25 February 2021, having not been selected out of the remaining 11 Stuart Alexander employees for one of seven roles that were available at that time that were covered by the Western Sydney EA or another EA with comparable rates of pay that were acceptable to employees. Prior to this selection process, dozens of jobs had been made available for employees to express interest in, and the Applicant expressed interest in none of them. The only role that the Applicant did express interest in was one at the 52 Holbeche site which was covered by the Western Sydney EA (a role that was included in the selection process, and in relation to which he was unsuccessful).

25. In cross-examination, the Applicant repeatedly denied that he had passed over roles because he was not willing to accept a lower hourly rate of pay. Those denials ought not be accepted. In his meeting with Vanessa del Prete and Mr Cassar on 25 February 2021, the Applicant indicated that he was not willing to travel more than 30 minutes from his current work site. As set out at paragraph 18 above, in cross-examination, the Applicant accepted that there were 33 jobs made available to him that were within 30 minutes from his workplace and which he was qualified to do. No other reason not to apply for these roles was identified, and in all the circumstances, the Commission can readily infer that the only remaining issue was the amount of pay. The fact that the Applicant would not make the obvious concession that this was the reason he did not express interest in any other jobs reflects very poorly on his credibility. This shaping of the Applicant's evidence to suit his interests in the proceeding ought to lead the Commission to reject his evidence wherever it is contradicted.

26. Rather, the Commission is urged to accept the consistent evidence of Ms Shamsi, Beverley Shersby, Carolyn Gorrey and Ms del Prete, each of whom on this point reliable and consistently deposed to the Applicant's position being that he was not willing to accept a role not covered by the Western Sydney EA or at his preserved rate of pay. The evidence of Ms Shamsi, Ms Shersby and Mr Cassar should also be accepted in respect of the Applicant's knowledge that retrenchment was a possible outcome of the redeployment process. The Applicant and Mr Dixon made a number of concessions consistent with this.

27. Ms del Prete importantly deposed that the Applicant stated that he was "not willing to move EBAs" on the day of his dismissal. She also produced contemporaneous notes recording this statement, and Mr Cassar corroborated it. Their evidence should be preferred to that of the Applicant, being that they were straightforward and responsive to questions, in contrast to the Applicant's unwillingness to make obvious concessions against his interests. Further, in considering the reliability of Ms del Prete's evidence (including contemporaneous notes) against the evidence of the Applicant, the Commission should also be guided by the observations of the Supreme Court of NSW in Mealey v Power [2015] NSWSC 1678 at [4] that in weighing competing narratives, given the fallibility of memory, "what matters most is usually the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts." The Applicant in cross examination acknowledged that he had no notes of the meeting on 25 February 2021 and was relying on memory (which he admitted had been wrong in other respects).

28. The Applicant submits at [25] of his Closing Submissions that he did not reject any of the roles provided by the Respondent in January and February 2021. For the reasons set out at [19] of DHL's Reply Submissions, this should not be accepted. This is post-event justification and runs directly contrary to the facts heard by the Commission. In fact, the Applicant acknowledged in cross examination that he had a choice to make in respect of the three dozen jobs made available to him and deposed that he was capable of making that decision without consulting his wife. The Commission would find that he chose not to express interest in any of these roles because they had a lower rate of pay.

29. Consistent with this, Ms Gorrey deposed that the Applicant indicated that he was not willing to accept a job covered by a different EA as late as 12 days after his dismissal. Ms Gorrey's evidence of these post-dismissal events is relevant and admissible insofar as it goes to the Applicant's state of mind at the relevant time, and hence the likelihood that he made various statements and the true complexion of otherwise undisputed facts, such as what is to be made of the Applicant failing to express interest in available jobs. This evidence was not challenged in cross-examination or contradicted by Mr Dixon. The Applicant's evidence in cross examination that he responded that he would have to discuss this with his wife should not be accepted. In addition to the general respective credibility of the witnesses, the Applicant's version is inconsistent with the cessation of discussions regarding the matter, there being no suggestion that he sought to have those discussions with his wife and re-convene the discussion. The Applicant cannot now credibly submit that he would have accepted a lower paid role if armed with the knowledge that he might otherwise be retrenched (which DHL submits he was in any event), when he in fact preferred to remain retrenched, rather than accept

30. Further, and in the alternative, even accepting the Applicant's version of events (which the Commission should not), the Applicant is suggesting that 12 days after his dismissal, he still did not know whether he would accept a job covered by a different EA. Even three months after his dismissal at the time of the hearing, knowing everything he did, the Applicant could not answer that he would be willing to accept a lower-paid role, and indicated that he would need to speak to his wife about it. In fact, the Applicant quickly changed his evidence when cross-examined about his decision-making, stating that in relation to the lists of vacancies presented, he "... had a decision to make, but I was capable of making those decisions without consulting my wife". Even accepting the Applicant's answer and setting aside the obvious conclusion that it was simply a means to avoid conceding that he would not accept such a role, in those circumstances, the Commission cannot accept that the Applicant would have behaved differently and accepted one of the dozens of roles made available if given different information before 25 February 2021.

Clause 39 of the Western Sydney EA does not assist the Applicant

31. Contrary to the Applicant's suggestion at [20] and [26] of his Closing Submissions, clause 39 of the Western Sydney EA does not assist the Applicant. Consistent with its obligations under this clause, DHL had taken significant steps to find suitable and acceptable roles for the Applicant in the seven week period leading up to his dismissal (see paragraph 18 above). The Applicant did not engage in that process.

32. Clause 39 of the Western Sydney EA (CB 129) states, in full, that:

In the event redeployment is required, DHL will aim and take steps to find suitable acceptable roles for the affected employees. In doing so, DHL will ensure that employees will not be required to accept a role with a lower hourly base rate of pay unless otherwise mutually agreed with the individual employee.

33. The UWU's understanding, given through the evidence of Mr Dixon, that clause 39 of the Western Sydney EA required DHL to firstly, unilaterally direct employees into other roles, and secondly, to maintain the rate that applied to them under the EA, is wrong and did not survive cross examination. That understanding is inconsistent with:

(a) The ordinary meaning of the provision's words (see WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]), which is simply that DHL cannot require an employee to accept a lower-paid role except without mutual agreement.

(b) The context in which the enterprise agreement was made (Amcor Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2005] HCA 10, 222 CLR 241 at [2] per Gleeson CJ and McHugh J; Skene supra), which is that as a third-party logistics provider, the terms of DHL's customer contracts dictate the labour costs it can bear, and hence tie contract costing to the enterprise agreements that apply to the employees engaged on that account.

(c) The further context that DHL employees are engaged and contracted to work on particular customer accounts, such that their job is tied to a specific account, and the trite legal proposition that an employer cannot unilaterally vary a contract. The Applicant's contract is in evidence, and contains no provision for DHL to unilaterally transfer him to another client account (and hence job).

34. The Applicant gave evidence in chief to the effect that Ms Shersby told him that all employees would be re-deployed by DHL without employees having any say in the matter. He seems to have assumed that re-deployment occurs where an employee is "unilaterally directed by DHL to another job on the same preserved rate." However, Ms Shersby, consistent with the contractual position, denied making such comments and should be believed. The making of such comments would be outside the scope of her role and inconsistent with the redeployment steps described at paragraph 18. It was not put to Ms Shersby that she was not being truthful. The truth is that the Applicant attempted to verbal Ms Shersby to sheet home to DHL what were in truth consequences of his own conduct and that of the UWU. As set out above more generally, he should not be believed where his evidence is contradicted. The Applicant relied on the advice of the UWU, and not that of Ms Shersby.

35. Given its wrong view of clause 39, the UWU told its members they should not participate in DHL's (actual and real) redeployment process by taking up available roles offered through that process, so that DHL would have to preserve their rates of pay. Regrettably, the UWU's view was wrong and the union misled its members about their position under the Western Sydney EA, with negative consequences for the Applicant who bypassed over three dozen suitable roles prior to being retrenched. This reckless and ultimately disastrous advice was the UWU's responsibility alone.

36. DHL had made significant effort to identify other work which could be performed by the Applicant over the course of the seven week redeployment process. Having deliberately and consciously passed over dozens of roles, and having not been selected for one of the seven roles covered by the Western Sydney EA, there was no job, position or other work that the Applicant could have done at the time of his dismissal."[25]

Applicant's Closing submissions In-reply - redeployment

• [47] Finally, the Applicant's Closing Submissions in-reply, on the issue of redeployment, were as follows:

"14. The Respondent relies on the evidence of Daniel Cassar that the Applicant was not taking care in the process that occurred on 25 February. Mr Cassar came to this view based on the apparent body language of the Applicant. However, Mr Cassar had only worked with the Applicant for one week in the previous eight years. Therefore, Mr Cassar's opinion of our member's attitude based on a short meeting and a short lived working relationship should not be given substantial weight as evidence of our member's state of mind during the interview on 25 February.

15. The Respondent claims that anyone who expressed an interest in a role prior to 23 February was immediately placed into their preferred role without a selection process. Prior to 23 February, just one of the 13 affected employees expressed interest in one of the 33 roles provided. Another employee expressed interest in a role on or around 23 February. By 25 February, just two of the 13 affected employees had been re-deployed, despite the Respondent providing a list of 33 available jobs. This is not persuasive evidence to support the Respondent's claim that the process was a clear and active redeployment process.

16. The Respondent in paragraphs [25] - [27] of their closing submissions is attempting to misconstrue the evidence of the Applicant. There is an important distinction between whether the Applicant rejected those 33 jobs or whether he actively applied for them. The Applicant does not deny that he did not actively apply for any of the 33 jobs listed prior to 23 February. He was clear up until this point that he had not applied for those roles because he wanted to stay on his preserved rate of pay. The Applicant has not attempted to shape his evidence to suit his interests, as the Respondent alleges. Therefore, the Commission should not accept the Respondent's submissions that this reflects poorly on the Applicant's credibility.

17. The Applicant stating that he did not reject any of the roles provided by the Respondent up to 23 February is not post-event justification as the Respondent claims, it is a fact. When provided with the available roles prior to 23 February, the Applicant responded by communicating that his preference was to be placed in a role that preserved his pay rate. During cross-examination, the Applicant stated that he had a decision to make in relation to the jobs offered prior to 23 February, but the evidence does not state that his decision was specifically to reject those roles. Therefore the decision he made can only be seen to be to not apply for those roles at that point in time.

18. In understanding this decision made by the Applicant, it should also be acknowledged that the Applicant was not provided with important information by the Respondent. The Respondent did not provide the Applicant, or any of the other affected employees, with a projected time frame as to when decisions about redeployment or retrenchment would be made. During the meeting on 15 January, Ms Shamsi also did not tell the Applicant that if he didn't apply for one of the roles that was being posted on the noticeboard then he would be dismissed. Therefore the Applicant was taking part in this process and making the decision not to apply for roles based on the limited information he had.

19. The Respondent refers to a meeting that occurred 12 days after the dismissal between the Applicant, Ms Gorrey and Mr Dixon. The Applicant submits that this meeting is irrelevant in considering his state of mind at the time of the dismissal because it occurred post-dismissal.

20. By the time the meeting occurred 12 days later, the Applicant's state of mind had already been coloured by the fact that the dismissal did occur. Post-dismissal events should be seen in their proper context as just that, post-dismissal. It should not be surprising that in the period immediately following the dismissal, the Applicant may provide responses that are indicative of a strained relationship. Any response given by the Applicant during that meeting cannot be taken to be indicative of the decision he would have made prior to the dismissal occurring.

21. The UWU's view of clause 39 is not wrong. In seeking to understand the ordinary meaning of clause 39's words, the Commission should consider what "required" means within the context of an employment relationship. If the Respondent dismisses an employee because they did not accept a lower paid role, then it could be understood that they required that employee to accept the role. If they did not require the employee to accept the lower paid role, then they would not have dismissed them. Accordingly, the UWU's interpretation of clause 39 was reasonable and founded in a common sense approach to redeployment.

22. The Respondent submits that the Applicant provided evidence that Ms Shersby told him that all employees would be re-deployed by the Respondent without employees having any say in the matter. This is incorrect. The Applicant gave evidence that Ms Shersby said that all employees would be re-deployed, not that they would not have any say in the matter. The Respondent is attempting to cast doubt on the Applicant's credibility by mischaracterising the evidence he did provide. The Applicant submits that these submissions should be given no weight by the Commission as to the Applicant's credibility."[26]

• [48] I commence by concurring with the submissions of the Respondent that an inadequate consultation process does not automatically lead to a finding or conclusion that s.389(2) of the Act cannot be satisfied. Sections 389(1)(b) and 389(2) are separate and individual limbs. Different issues arise in respect of relevant findings to be made as to compliance or non-compliance with each limb. Whilst non-compliance with one limb gives rise to a redundancy not being genuine under s.389 of the Act, it will not always (or even usually) be the case that a failure to consult will mean that redeployment would have been reasonable. Indeed, in many cases, no matter how much consultation could or should have occurred, there was never a reasonable basis for redeployment.

• [49] The Applicant was a "Storeperson (Preserved)" (SP) under the Agreement. He was also a named person under Schedules 3 and 4 of the Agreement. This entitled the Applicant, at the time he was dismissed (for reasons of redundancy), to:

(a) the higher SP rates of pay under Attachment 1 of the Agreement (cf. Attachment 3 of the Agreement);

(b) the higher redundancy/severance payments under Attachment 4 of the Agreement (in the case of the Applicant, entitling him to a forty (40) week severance payment at the higher SP rate of pay (cf. Attachment 4 of the Agreement));

(c) payment of 5 weeks' notice of termination (at the higher SP rate of pay) (cf. clauses 13.1 and 16.1 of the Agreement);

(d) the additional payment of any unused Personal (Sick) Leave, up to a maximum of 228 hours (equivalent to six weeks), paid out upon termination in the event of redundancy (at the higher SP rate of pay) (cf. Attachment 4 of the Agreement);[27] and

(e) assistance in future employment through training in preparation of letters of application, resumes and interview skills. Reasonable time will be made available, by mutual agreement, for employees to attend interviews (cf. Attachment 4 of the Agreement).[28]

• [50] Attachment 3 of the Agreement, in respect of SP rates of pay, relevantly reads:

"Only employees whose names are listed below will be entitled to Storeperson (Preserved) rates of pay set out in Attachment 1 - Wage Rates [of the Agreement]. This list is exhaustive and will not be added to.

Where an employee whose name is listed below accepts a role covered by another [enterprise] agreement they will no longer be entitled to the preserved rates of pay set out in this Agreement.

For example: where a Storeperson (Preserved) whose name appears in the below table successfully applies for a Storeperson L1 position covered by [another DHL enterprise agreement], they will be paid as a store person L1 as per that [other DHL enterprise agreement] and will no longer be entitled to the [Storeperson (Preserved)] rates of pay under the Agreement."

• [51] Attachment 4 of the Agreement, in respect of SP redundancy payments, relevantly reads:

"Only employees whose names are listed in this attachment [Attachment 4] will be entitled to [the] below listed redundancy provisions. This list is exhaustive and will not be added to.

Where an employee whose name is listed in this attachment [Attachment 4] accepts a role covered by another Agreement they will no longer be entitled to the below preserved redundancy provisions."[29]

• [52] The EBA Exclusion in Clause 5 of the Agreement reads:

"Employees who are covered by the agreements described above, and apply for roles that are covered within this Agreement, will be covered by the terms and conditions of this agreement if appointed to such roles. Employees who are covered by this Agreement and apply for roles which are not covered by this Agreement, will be covered by the terms and conditions of the applicable agreement of appointed to such roles. All terms and conditions will be clearly advised prior to such appointment.

No employee will suffer any reduction in employment conditions, wages or allowances, if directed to work where the work performed is covered by terms and conditions of one of the agreements described in Clause 5 Exclusions."

"In the event redeployment is required, DHL will aim and take steps to find suitable acceptable roles for the affected employees. In doing so, DHL will ensure that employees will not be required to accept a role with a lower hourly base rate of pay unless otherwise mutually agreed with the individual employee."

• [54] I construe the meaning of the words (extracted above at paragraphs [50] to [53]), and their combined operation, as follows:

(a) Employees who "accept" a role offered to them by the Respondent at a site other than the HP, AP1, and AP2 sites will not be covered by the Agreement and will not have their SP terms and conditions under the Agreement maintained at such other site. Instead, an employee who accepts such a role offered to them, will be covered by the terms and conditions set out in the enterprise agreement that has coverage at the other site. Acceptance of a role may arise where the employee applies for role and is successful in obtaining that role, or where an employee is offered a role by the Respondent and accepts same.

(b) Employees who are "directed" or "required" to move to a role at a site other than the HP, AP1, and AP2 sites will not be covered by the Agreement, but will have their terms and conditions under the Agreement maintained (to the extent they are more beneficial) at such other site (i.e. notwithstanding that at this other site a different enterprise agreement has coverage).

(i) the Respondent is not required, in the case a redeployment (for whatever reason), to redeploy an employee/s into another role/s not covered by the Agreement and maintain an employee's higher rates of pay and entitlements. For example, a Respondent may not elect to do so because it would be unreasonable, in that the maintenance of the employee's higher rates of pay and entitlements in the redeployed role would be too costly (and not be compensated under the client contract in place at the other site);

(ii) Clause 39 does not prohibit, limit, or otherwise restrict, the ability of the Respondent to make an employee redundant in circumstances where a "suitable acceptable role" (maintaining existing rates of pay and entitlements) is not available, and/or where an employee/s refuses to accept a redeployment position at a lower rate of pay;

(iii) an employee is not required, in the case a redeployment (for whatever reason), to accept a role not covered by the Agreement which does not maintain the employee's higher rates of pay and entitlements. However, in refusing to accept such a role, the inevitable result would be redundancy.

(d) In short, and relevantly for the purposes of these proceedings, if the Applicant:

(i) applied (voluntarily) for a role at another site that is not covered by the Agreement, he would immediately, upon his employment in the new role being confirmed, forgo his higher SP rates of pay, and his higher SP redundancy/severance entitlements, under the Agreement (with rates of pay and redundancy/severance entitlements determined under the enterprise agreement that covers the new role);

(ii) accepted (voluntarily) a role offered to him by the Respondent at another site that is not covered by the Agreement, he would immediately, upon his employment commencing in the new role, forgo his higher SP rates of pay, and his higher SP redundancy/severance entitlements, under the Agreement (with rates of pay and redundancy/severance entitlements determined under the enterprise agreement that covers the new role); or

(iii) was directed or required (involuntarily) to work ain a role at another site that is not covered by the Agreement, he would not forgo his entitlement to higher SP rates of pay, and higher redundancy/severance payments, under the Agreement.

• [55] In my view, the foregoing interpretation and construction is consistent with:

(b) Clause 28 (Remuneration), i.e. "Increases in the base rates shown in Attachment 1 have to be agreed with our clients during contract negotiations", in accordance with the cost-plus business model used by DHL;

(c) the unchallenged evidence of Ms Gorrey, where she states "... the rates we can charge customers are negotiated based on the rates in the applicable enterprise agreement";[30] and

(d) Clause 12.4.3, which provides that this clause (12.4.3) does not apply in the event that an employee "accepts" a transfer to an alternative site.

• [56] I am equally of the view that the construction and interpretation I have adopted:

(a) is consistent with the plain and ordinary meaning of the words of the Agreement read as a whole;

(b) gives each of the words in each of the provisions work to do;

(c) does not produce any inconsistency between the respective provisions; and

(d) does not give rise to any absurdity.[31]

• [57] My findings and conclusions in paragraph [54] to [56] of this decision:

(a) are to be taken as a rejection of a construction or interpretation to the contrary, advanced by way of submission or evidence in these proceedings;[32] and

(b) form part of "all the circumstances" for the purposes of determining whether "it would have been reasonable in all the circumstances for [the Applicant] to be redeployed within" the Respondent's enterprise or an associated entity of the Respondent (s.389(2) of the Act).

• [58] I note that the Applicant submits that there is nothing stopping the Respondent from directing an employee (such as the Applicant) to perform work on another contract (i.e. other than the SA contract). Presumably, this submission is made subject to the Respondent satisfying Clauses 12.4.3 and 39 of the Agreement (in relation to travel time and "suitable acceptable role").

• [59] However, even if the foregoing submission by the Applicant be correct, it cannot be said that any of the provisions of the Agreement require the Respondent to make such a direction in circumstances where the making of such a direction would require the Respondent to maintain rates of pay and conditions that are in excess of the enterprise agreement that applies at the site that the employee is redeployed to. In other words, just like the Applicant has a choice not to accept redeployment to a site that does not maintain his/her higher rates of pay and conditions, the Respondent also has a choice as to whether it issues a direction to an employee to be redeployed to a site that would cause it to incur adverse costs consequences at that site (i.e. via the transfer of labour to that site at a higher cost unit than has been agreed to under the enterprise agreement (and client contract) applying at that other site).

• [60] Indeed, if the Applicant's submission in paragraph [58] above is correct, it would effectively result in the SP higher rates of pay and redundancy/severance entitlements being preserved for relevant employees no matter what site they are redeployed to, or in what circumstances the redeployment occurs. The words of the Agreement simply cannot be interpreted to that end. Further, such a position or outcome is not consistent with the spirit and tenor of the Agreement. In this regard, I reject the proposition that it would be acceptable under the Agreement for an employee to simply refuse to apply for or accept redeployed roles that do not maintain his/her higher rates of pay under the Agreement, so as to bring about a circumstance whereby the Respondent is essentially left with little choice but to 'direct' the employee be redeployed into a role that is not covered by the Agreement and maintain the employee's higher rate of pay or other more generous entitlements. In other words, the engineering of a such a circumstance cannot be said to be one that creates any issue of unreasonableness around a failure to redeploy, nor can it be said to bring about any surprise as to redundancy.

• [61] Having regard to paragraphs [54] to [60] of this decision, and the evidence, in relation to the redeployment of the Applicant, I make the following findings:

(a) At the time of his dismissal, there is no evidence that the Applicant could have been redeployed into a casual position covered by the Agreement (i.e. replacing a casual position with a full time position filled by the Applicant). In this regard, I accept the evidence of Ms Shamsi that:

(i) casual roles at the Respondent's work sites are contingent labour, which is used to deal with the ebbs and flows of workloads from time to time (i.e. at the Respondent's enterprise, casual roles are not simply interchangeable with permanent roles such that they ripen for consideration as an available role for redeployment);[33]

(ii) the foregoing is especially so in circumstances where the ability to convert a casual role to a full-time role requires agreement from the Respondent's customer. On the evidence, no such agreement occurred at the time that the Applicant was made redundant, and there can be no suggestion that the Respondent would be in a position to force a client's hand in that regard.[34]

(b) During the redeployment process, over a period of nearly two months, there were 33 available roles that were put forward to the Applicant to apply for. Other than in relation to maintenance of SP entitlements, 32 of these roles met the criteria set by the Applicant (himself) for redeployment. The Applicant only applied for one of the 33 available roles, being a role that was covered by the Agreement (and maintained his SP entitlements).[35] If the Applicant had applied for and been successful in his application to be redeployed into any of the other 32 available roles, he would have lost his entitlement to the higher SP rate of pay, and the higher redundancy/severance payment (in the event of redundancy).[36] In his evidence, the Applicant accepts these findings.

(c) There was no offer made by the Respondent, through any of its employees, including Ms Shersby, for employees to be redeployed into other available roles with the Respondent, with rates of pay or other conditions to be negotiated (for example, to negotiate the maintenance of part or all of the higher SP rates of pay, or SP redundancy/severance entitlements, under the Agreement at a work site not covered by the Agreement).[37]

(d) On the evidence, at the time that the Applicant was made redundant, there were no identifiable available roles that the Applicant could have been redeployed into which would have maintained his higher SP rate of pay and/or his higher SP redundancy/severance entitlements. Whilst the Applicant applied for the Whittaker & Sons storeperson role (which was covered by the Agreement), he was unsuccessful in that application (i.e. another employee in similar circumstances as the Applicant was successful in obtaining that role).

(e) In view of (a) to (d) above, I find (on the evidence) that it would not have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent's enterprise, or an associated entity of the Respondent. In this regard, I also make the following further findings in support of this conclusion (on the evidence, taking into account all of the circumstances):

(i) the evidence discloses that the Respondent made substantial efforts to redeploy employees displaced as a result of the loss of the SA contract (across a period of around seven weeks);

(ii) it would not have been reasonable for the Respondent to simply convert a casual role to a full-time role at a site covered the Agreement, and deploy Applicant into that full time role;

(iii) there was no obligation (under the Agreement or otherwise) for the Respondent to redeploy the Applicant into a role that was covered by the Agreement unless it was available at the time he was dismissed;

(iv) the Respondent had every right to engage in a selection and interview process, of internal employee candidates, so as to determine who it would choose to redeploy into available roles (especially where multiple employee applicants had applied for a particular role);

(v) there was no obligation (under the Agreement or otherwise) for the Respondent to redeploy the Applicant (or direct the Applicant to be redeployed) into a role that was not covered by the Agreement, and maintain the Applicant's higher SP rate of pay and redundancy/severance entitlements; and

(vi) there was no obligation or requirement (under the Agreement or otherwise) for the Applicant to apply for or otherwise accept redeployment into role that did not maintain his SP rate of pay and redundancy/severance entitlements. However, the consequences of a decision by the Applicant to refuse to accept such redeployment are intolerably clear - redundancy (albeit, I have accepted that this outcome was not put squarely to the Applicant during the consultation process adopted by the Respondent).

• [62] Determinations under s.389 are interlocutory. That said, there is no reason as to why evidence tendered in an interlocutory hearing would not, in the ordinary course, be able to be relied upon at a merits hearing. This equally (ordinarily) applies to any findings made at an interlocutory hearing, subject of course to more fulsome and/or cogent evidence being advanced at a merits hearing to displace or alter any such findings.

• [63] Whilst I have made a finding that the Respondent did not comply with the consultation requirements set out under Clause 8(b) of the Agreement, there remains the evidence of Ms Gorrey as to the conversation that occurred at her meeting with the Applicant and Mr Dixon on 9 March 2021 (also in attendance were Mr Grant Connolly (Senior ER/IR Specialist), and Ms Elizabeth Axen (HR Manager)). This evidence was not contested by the Applicant or Mr Dixon in their witness statements, nor was it put to Ms Gorrey (or any of the other Respondent witnesses) during cross-examination that such evidence was wrong. Ms Gorrey's evidence in this regard is as follows (with Mr Dixon of the UWU acting as the Applicant's representative):

"During the meeting [on 9 March 2021] we had an exchange to the following effect:

Ms Gorrey: Peter [Applicant], are you prepared to consider any roles not covered by your current [enterprise] agreement?

Mr Dixon: He would consider it if he got to keep his rates.

Ms Gorrey: The enterprise agreement clearly outlines that those terms and conditions only apply if Peter remains covered by the agreement. We do not have any available roles that are covered by that agreement.

Mr Dixon: Then there is clearly nothing else to discuss."

• [64] I observe that on the foregoing evidence as it currently stands, at no time during the above conversation was any clarification sought by the Applicant or Mr Dixon as to what alternative roles might be available (which were not covered by the Agreement, or which did not maintain the higher SP rate of pay and SP redundancy/severance entitlements). Nor did the Applicant or Mr Dixon seek further time for the Applicant to consider his position or consult with another person (such as the Applicant's wife, or a legal representative). Rather, the option of an alternative role not covered by the Agreement, or a role that did not maintain the higher SP rate of pay and SP redundancy/severance entitlements, was dismissed out of hand.

• [65] The approach of the Applicant at the meeting on 9 March 2021 is consistent with other evidence in these proceedings to the effect that the Applicant:

(a) no matter what role he was redeployed into, required the maintenance of his higher SP rate of pay and SP redundancy/severance entitlements; and

(b) held the erroneous or convenient belief that the Respondent was required to redeploy the Applicant into a role that maintained his higher SP rate of pay and SP redundancy/severance entitlements because such redeployment arose from an organisational change or the loss of a customer contract (and the Applicant had chosen not to apply for a role that would not maintain his higher SP rate of pay and SP redundancy/severance entitlements).

• [66] Ms Bolton (after receiving and reviewing Ms Gorrey's evidence on 24 May 2021)[38] did not make a request to lead or otherwise tender any further clarifying or contradicting evidence of the 9 March 2021 discussion (at the hearings on 24 May or 18 June 2021). Ms Bolton also dealt with Ms Gorrey's evidence (as to the 9 March 2021 discussion) in her closing submissions, submitting that the discussion is irrelevant (because it occurred post dismissal); that the Applicant may have provided responses indicative of a strained relationship; and that the Applicant's position at the 9 March 2021 meeting is not be seen as indicative of the decision (as to redeployment) that he would have made prior to his dismissal. Whether or not these submissions are ultimately made out is an issue for the merits hearing.

• [67] What was said at the 9 March 2021 meeting will loom large in any determination as to whether the Applicant's dismissal was indeed unfair, and if unfair, the nature and/or scope of any possible remedy. This is especially so having regard to:

(a) the reason for dismissal being prima face valid (noting the Applicant's concession in relation to s.389(1)(a) of the Act);

(b) my findings as to the construction and operation of the Agreement (at paragraphs [54] to [56] of this decision);

(c) my findings as to redeployment (at paragraphs [58] to [61] of this decision);

(d) the intertwined and interconnected nature of factual issues in these proceedings concerning consultation and redeployment, especially when one comes to consider "other matters" to be taken into account when determining questions of unfairness (s.387(h)), and the requirement for a "fair go all round" to be applied by reference to the Object of Part 3-2 of the Act (s.381); and

(e) the entitlements that were paid out to the Applicant upon termination (which appear to be somewhere in the order of 45 to 51 weeks' pay, at the SP rate of pay, in respect of notice payments, redundancy/severance payments, and unused sick leave), taking into account the fact that the award of compensation is discretionary, and that where compensation is awarded, Step 2 of the test in Sprigg v Paul's Licensed Festival Supermarket requires the Commission, when calculating compensation, to deduct monies earnt since termination (including in relation to monies paid in respect of notice, redundancy/severance, and (for want of a better term) ex gratia sick leave termination payments).[39]

• [68] Having regard to the evidence, the submissions of the parties, and the reasons set out in this decision, I find that the Applicant's dismissal was not a case of "genuine redundancy" within the meaning of s.389 of the Act due to non-compliance with clause 8(b) of the Agreement. An order dismissing the Respondent's jurisdictional objection in this regard will be published with this decision, and the matter will be listed for further mention and programming on a date to be fixed.

Mr Michael Tamvakologos, Seyfarth Shaw, for the Respondent.

[1] See Form F2 filed by the Applicant on 12 March 2021; Form F3 filed by the Respondent 23 March 2021; Respondent's Opening Submissions dated 28 April 2021 at [4]-[7].

[2] Respondent's Closing Submissions dated 23 July 2021 at [3].

[3] Ulan Coal Mines Limited v Henry Jon Howarth & Ors [2010] FWAFB 3488 at [15] (Boulton J, Drake SDP, and McKenna C), citing R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases [1984] CthArbRp 284; (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511.

[4] Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J), cited with approval in Ulan Coal Mines Limited v Henry Jon Howarth & Ors [2010] FWAFB 3488 at [17] (Boulton J, Drake SDP, and McKenna C). See also: Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 at [43]- [44] (Spender, Dowsett, and Allsop JJ).

[5] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 (Hamberger SDP), at [27].

[6] Applicant's Submissions dated 12 May 2021 at [8].

[7] Maxwell v Bardrill Corporation Ltd [2015] FWC 4019 at [40]- [41].

[8] See Gourdeas v Heyday 5 Pty Limited [2020] FWC 6132 at [28]; Maswan v Escada [2011] FWA 4239 at [19]- [20]; TCR Case [1984] CthArbRp 284; (1984) 8 IR 34; (1984) 9 IR 115.

[9] [2017] FWCFB 3005.

[11] Respondent's Opening Submissions dated 28 April 2021 at [9]-[20].

[12] Applicant's Submissions dated 12 May 2021 at [9]-[54].

[13] Respondent's Submissions In Reply dated 19 May 2021 at [4]-[12].

[14] Applicant's Closing Submissions dated 13 July 2021 at [3]-[19].

[15] Respondent's Closing Submissions dated 23 July 2021 at [4]-[16].

[16] Applicant's Closing Submissions In Reply dated 3 August 2021 at [2]-[13].

[17] See Clauses 4 and 5 of the Agreement.

[18] I note that 13 of the 16 roles were covered by the Agreement, with the other 3 roles being administrative or managerial employees.

[19] [2021] FWCFB 3325, at [27]-[32].

[20] [2010] FWAFB 3488.

[21] Respondent's Opening Submissions dated 28 April 2021 at [21]-[25].

[22] Applicant's Submissions dated 12 May 2021 at [55]-[65].

[23] Respondent's Submissions In Reply dated 19 May 2021 at [13]-[20].

[24] Applicant's Closing Submissions dated 13 July 2021 at [20]-[26].

[25] Respondent's Closing Submissions dated 23 July 2021 at [17]-[36].

[26] Applicant's Closing Submissions In Reply dated 3 August 2021 at [14]-[22].

[27] Also noting Clause 16.2 of the Agreement.

[28] Ibid. I equally note that Items (c) and (d) apply to all employees to whom the Agreement applies, see Clause 16.2 "Redundancy Pay" of the Agreement.

[29] I note that the words set out above from Attachments 3 and 4 of the Agreement are replicated at Clauses 14.1 and 16.2 of the Agreement.

[30] Witness Statement of Ms Carolyn Jane Gorrey dated 19 May 2021 at [20].

[31] In other words, is consistent with the principles set out in AMWU v Berri Pty Limited [2017] FWCFB 3005, at [114].

[32] See, for example, Transcript, 24 May 2021 at PN123; Witness Statement of Mr Jonathon Dixon dated 12 May 2021 at [5] and [10].

[33] Transcript, 18 June 2021 at PN227.

[35] Courtbook p.60, List of available roles 23 February 2021, Row 4, Whittaker & Sons Store-person role.

[36] Transcript, 24 May 2021 at PN148-PN150, PN152, PN209, PN247-PN248, PN258-PN259, PN269, PN291, PN296-PN310, and PN337. Applicant's Statement dated 11 May 2021 at [21].

[37] Witness Statement of Ms Beverley Shersby dated 19 May 2021, at paragraphs 4(e) and (f), cf. Transcript, 24 May 2021 at PN319.

[38] I note that the statement of Ms Gorrey (19 May 2021, Exhibit R3) only came to the attention of the Applicant and his representative (Ms Bolton) at the hearing on 24 May 2021 because it had been mistakenly omitted by the Respondent when filing its other evidence: Transcript, 24 May 2021, PN88-PN100, PN159, PN422-PN429, PN592.

[39] (1998) 88 IR 21.

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