[2022] FWCFB 173

Fair Work Act 2009

s.604 - Appeal of decision

Ready Workforce (A Division of Chandler Macleod) Pty Ltd t/a Chandler Macleod

Andrew Lowe, Bernard McIntyre, David Lindsay, Glenn Munro, James Eason, Johnathon Barbara, Mark Keller, Robert Snelgrove, Scott Ditchfield, Scott McFarlane, Timothy Farrow

Appeal against decision [2022] FWC 1352 and order PR742129 of Commissioner Cambridge at Sydney on 7 June 2022 in matter number C2021/8025.

[1] Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Ready Workforce) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission to appeal is required, against a decision[1] (decision) and order[2] of Commissioner Cambridge issued on 7 June 2022. The decision concerned an application made by Ready Workforce under s 120 of the FW Act to reduce the amount of redundancy pay owing to the 12 respondent employees named in that application (respondent employees) to nil.[3]

[2] The Commissioner dismissed the application in respect of each of the respondent employees on the basis that he was not satisfied that Ready Workforce had obtained other acceptable employment for them within the meaning of s 120(1)(b)(i) of the FW Act.

[3] Ready Workforce seeks permission to appeal the decision and order. It contends that the Commissioner erred in finding that it had not obtained other acceptable employment for the respondent employees. Ready Workforce further submits that the Commissioner erred by using the wrong test to determine the "other acceptable employment" question and failed to make a number of necessary factual determinations.

[4] The matter on appeal was subject to a hearing in respect of both permission to appeal and the merits of the appeal. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appeared on behalf of Andrew Lowe, David Lindsay, Glenn Munro, Johnathon Barbara, Robert Snelgrove, Scott Ditchfield, Scott McFarlane; Timothy Farrow; and Mark Keller. No appearance was recorded for Bernard McIntyre or James Eason.

[5] For the reasons that follow, we decline to grant permission to appeal.

[6] Ready Workforce is a labour hire company. Between September 2014 and 31 October 2021, Ready Workforce provided labour to the Mount Arthur Coal Mine pursuant to a labour hire agreement between Ready Workforce and Hunter Valley Energy Coal Pty Ltd (BHP).[4]

[7] The labour hire arrangement involved Ready Workforce supplying in excess of 250 dump truck operators or dump truck trainers to the Mount Arthur Coal Mine,[5] located in the Hunter Valley Region of New South Wales.[6] The relevant employees were covered by the Chandler Macleod Northern District of NSW Black Coal Mining Agreement 2015 (Agreement).[7]

[8] On or around 29 September 2021, Ready Workforce was informed by BHP that it had been unsuccessful in retaining the tender for the supply of such labour to the Mount Arthur Coal Mine. Ready Workforce ceased the provision of labour on 31 October 2021.[8] The tender was awarded to Programmed Skilled Workforce Limited (Programmed).[9] Programmed provided labour to the Mount Arthur Coal Mine on and from 1 November 2021.

[9] It is not in dispute that these circumstances gave rise to an entitlement for the respondent employees to be paid redundancy pay by Ready Workforce pursuant to clause 19 of the Agreement. Clauses 19.3 and 19.4 of the Agreement provide for a scheme of retrenchment and severance payments on redundancy which are different to, and in some cases more beneficial than, the minimum National Employment Standards (NES) redundancy pay entitlements provided for in s 119 of the FW Act. Under clause 19.1, any payment made pursuant to clause 19 of the Agreement is "inclusive of any entitlement to redundancy pay under the NES or the Act." Both at first instance and on appeal, the parties proceeded on the basis that Ready Workforce was entitled to make an application under s 120 of the FW Act for the reduction of so much of the respondent employees' redundancy entitlements under the Agreement as equated to, and was purportedly derived from, the minimum entitlements provided for in s 119. We will determine the appeal on the assumption, without deciding, that this approach is correct.

[10] The facts in this case are largely uncontentious. On 30 September 2021, Ready Workforce provided the relevant employees with a communication which advised that its tender bid had been unsuccessful. The communication stated that "Programmed is the preferred supplier" from 1 November 2021 and "everyone will have the opportunity to apply for roles with Programmed." The communication then advised of information sessions convened by Programmed over the following week.[10]

[11] On 1 October 2021, Ready Workforce issued a further communication to relevant employees. The communication document provided a link to the Programmed website, which was said to contain a list of the various employment opportunities available with Programmed in respect of which Ready Workforce employees could express their interest.[11]

[12] Also on 1 October 2021, Ready Workforce's Chief Executive Officer had a telephone discussion with the Chief Executive Officer of Programmed during which it was agreed that the companies' respective "Heads of People" would communicate about any further arrangements regarding the transfer of employees from Ready Workforce to Programmed.[12]

[13] On 5 October 2021, the Chief People Officer for Ready Workforce, Mr Mark Graham, had a telephone discussion with the Head of People for Programmed, Mr Kevin Cameron. During this call, Mr Graham said that he was seeking to "endorse" the employees performing work for Ready Workforce at the Mount Arthur Coal Mine and wanted to obtain employment for them with Programmed.[13] Following this call, Mr Graham sent Mr Cameron an email setting out the names of Ready Workforce's permanent employees working at the Mount Arthur Coal Mine. The email stated, "we are looking to do all possible to ensure we can place our perm[anent] employees with Programmed to commence on 1 November 2021."[14]

[14] On 11 October 2021, Mr Graham caused an email to be sent to Ready Workforce's relevant employees, which advised that their employment would end on 11 November 2021. The correspondence relevantly stated that "In order to cause employment offers to be made to you from the new supplier, we have commenced and will continue the following proactive steps in obtaining you employment..." The list referred to matters including:

• (a) invitations sent by Ready Workforce to attend interactive sessions to discuss roles at Programmed;

• (b) paid overtime to attend those sessions;

• (c) paid time off to attend interviews and other meetings with Programmed;

• (d) sharing of training records with Programmed;

• (e) sharing of employee information "to assist in the administrative process of employment;"

• (f) provision of letters of recommendation and statements of service to Programmed;

• (g) provision to Programmed of employee medical records with consent;

• (h) provision of résumé writing and interview preparation support; and

(i) access to the Employee Assistance Program during the transition period.[15]

[15] Also on 11 October 2021, Mr Graham sent an email to Mr Cameron seeking "any updates on how you might be progressing with offers to our people." The email identified 13 employees by name, including all the respondent employees, and stated, "[w]e are particularly interested in the employees below - they are our more experienced people".[16]

[16] On 12 October 2021, Mr Cameron responded to Mr Graham's 11 October 2021 email advising that Programmed had interviewed "about 180 employees to date" and would "be moving to offer employment later this week to as many candidates as we can who satisfy our selection process."[17] Mr Graham replied by email dated 14 October 2021 seeking an update, "especially for the more experienced employees." Mr Graham sought further information about Programmed's selection process and reiterated offers to provide further assistance and information about the relevant employees.[18]

[17] All but one[19] of the respondent employees was offered employment with Programmed around 12 to 20 October 2021.[20] It was Ready Workforce's position that it had worked collaboratively with Programmed and took a series of proactive steps to ensure that the respondent employees received offers of acceptable employment with Programmed on the same or substantially the same terms and conditions as their employment with Ready Workforce.[21] Each respondent employee who received an offer accepted employment with Programmed and commenced working for them at the Mount Arthur Coal Mine between 1 and 15 November 2021.

[18] On 26 November 2021, Ready Workforce lodged with the Commission an application pursuant to s 120 of the FW Act for the redundancy entitlements otherwise payable to the respondent employees to be reduced to nil.[22] The application was made on the basis that Ready Workforce had obtained other acceptable work for the respondent employees within the meaning of s 120(1)(b)(i) of the FW Act.

[19] Part 2-2 of the FW Act contains the NES. Division 11 of that Part establishes entitlements to notice of termination of employment and redundancy pay. By s 119(1) of the FW Act, an employee is entitled to be paid redundancy pay if the employee's employment is terminated:

• (a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

• (b) because of the insolvency or bankruptcy of the employer.

[20] The quantum of redundancy pay entitlements is set out in s 119(2) of the FW Act, and operates by reference to an employee's period of continuous service with their employer on termination.

[21] Section 120 of the FW Act provides:

• (1) This section applies if:

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

  • (b) the employer:

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

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

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

[22] In the determination of an application pursuant to s 120 of the FW Act, the preconditions in s 120(1) require the Commission to be satisfied, first, that each employee the subject of the application has an entitlement to redundancy pay "because of" s 119 and, second, that the employer has either obtained acceptable employment for the employee or cannot pay the redundancy pay to which the employee is entitled under s 119.

[23] Conditional upon the preconditions in s 120(1) being satisfied, the Commission may determine under s 120(2) whether the relevant employee's entitlement to redundancy pay under s 119 should be reduced and, if so, by how much.[23] This requires the exercise of a broad discretionary power.[24] Pursuant to s 120(3), any determination by the Commission for a reduced amount of redundancy pay then becomes the employee's entitlement under s 119.

[24] Having regard to the statutory framework earlier set out, the task before the Commissioner was to determine whether Ready Workforce had obtained other acceptable employment for the respondent employees. Had the Commissioner found that acceptable employment had been obtained, it was then necessary to determine whether the redundancy pay otherwise payable to the respondent employees should be reduced, and if so, by how much.

[25] In the decision, the Commissioner set out the steps taken by Ready Workforce following notification that it had been unsuccessful in its tender bid for renewal of the labour hire contract at the Mount Arthur Coal Mine.[25] These steps took place between 30 September and 14 October 2021 and are summarised above at [10] to [17].

[26] The Commissioner noted that while the first respondent employee was not offered employment with Programmed, the second to twelfth respondent employees were each offered and accepted positions with Programmed.[26]

[27] After summarising the parties' respective submissions,[27] the Commissioner commenced his consideration by noting that the application "primarily involved" the question of whether Ready Workforce had obtained other acceptable employment for the respondent employees.[28] The Commissioner considered the evidence to determine whether a finding could be made that the second to twelfth respondent employees' employment with Programmed was obtained by Ready Workforce.[29] The Commissioner concluded that the evidence did not support a finding that the actions of Ready Workforce "operated as the primary means by which the alternative employment of the respondent employees with Programmed was secured."[30] The Commissioner noted that the evidence did not establish that Ready Workforce had "negotiated and secured any assurances from Programmed regarding any aspect of the employment."[31]

[28] The Commissioner found that the steps taken by Ready Workforce involved "the facilitation and assistance for a potential of employment with Programmed."[32] This did not, in the Commissioner's view, reach the threshold for a finding that Ready Workforce had obtained other employment for the second to twelfth respondent employees. The Commissioner noted that this was a matter considered by the Full Bench in Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd,[33] from which the Commissioner extracted the following:

"[54] In our view, the limited actions of the Respondent, which did no more than establish contact between its employees and ACG, with the effect that employees were able to participate in the recruitment processes of ACG falls well short of action which 'causes acceptable alternative employment to become available to the redundant employee' and the Respondent was not a 'strong, moving force towards the creation of the available opportunity'.

[55] The finding of Commissioner Gregory that 'the evidence of Mr Christmas, in particular, indicates FBIS has done enough in all the circumstances to "obtain" alternative employment for the employees' was incorrect and was not open on the evidence given the limited actions of the Respondent which did no more than facilitate the entry of its employees into the recruitment processes of ACG. In our view, as the conclusion was not available to the Commissioner on the evidence it reflects a significant error of fact."

[29] The Commissioner concluded that in the absence of evidence establishing that Ready Workforce did more than facilitate and assist employees to participate in a recruitment process "in the hope that they receive offers of employment", he was not satisfied that Ready Workforce had obtained the employment with Programmed for the respondent employees.[34]

[30] While recognising that it was not strictly necessary to do so given the finding set out at [29] above, the Commissioner proceeded to consider whether the employment with Programmed could be regarded as "accept[35]le".35 In the case of the third, fourth, sixth, seventh, tenth, eleventh and twelfth respondent employees, the Commissioner was satisfied that it was[36]cceptable.36 However, the Commissioner considered that no findings could be made in relation to the second and fifth respondent employees, and with respect to the ninth respondent, the employment with Programmed was not acceptable alternative[37]mployment.37

[31] The Commissioner relevantly concluded that the application must be dismissed and ordered accordingly.[38]

[32] Ready Workforce raises two broad grounds of appeal. The first alleges that the Commissioner applied the wrong test in the determination of whether Ready Workforce had obtained other acceptable employment for the respondent employees. The second concerns an alleged failure to make a factual finding that the employment Ready Workforce obtained in relation to the first, second and fifth respondent employees was acceptable alternative employment. Ready Workforce accepts that the errors complained of by appeal ground two are only material if the error alleged by ground one is made out.

[33] In relation to the first appeal ground, Ready Workforce submits that the Commissioner was required to determine whether it had obtained other acceptable employment for the respondent employees. It says that the Commissioner erred by using the wrong test to determine the question. Ready Workforce submits that the Commissioner adopted four incorrect tests, being that it was necessary for Ready Workforce to prove that:

(a) "the actions of the employer operated as the primary means by which the alternative employment of the respondent employees with Programmed was secured;"[39]

(b) "it had negotiated and secured any assurances from Programmed regarding any aspect of the employment of the respondent employees with Programmed;"[40]

(c) "Programmed clearly maintained the unfettered option to engage or not engage any of the employees of [Ready Workforce];"[41] and

(d) "the employer needed to do more than simply facilitate and assist employees to participate in a recruitment process in the hope that they receive offers of employment."[42]

[34] Ready Workforce contends that had the Commissioner followed the decision of the Federal Court of Australia Full Court in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia[43] (FBIS), the Commissioner would have found that Ready Workforce had obtained the employment for the respondent employees.

[35] With respect to the second appeal ground, Ready Workforce contends that the Commissioner erred by failing to make a finding that the employment obtained for the first respondent was acceptable. It is said that Mount Arthur Coal Mine's vaccine mandate meant that the first respondent would not be able to work at the mine site on the basis that he was unvaccinated. Notwithstanding this, the evidence before the Commission established that the pay and hours of work at Programmed were the same as at Ready Workforce. Accordingly, it is contended that the Commissioner ought to have found that the employment was objectively acceptable, as the proper test is not whether the employment was acceptable to the first respondent employee.

[36] Similarly, with respect to the second and fifth respondent employees, it is said that the Commissioner failed to determine whether the employment with Programmed was acceptable, seemingly on the basis that the second and fifth respondent employees did not attend the hearing or file evidence. Ready Workforce submits that this was an insufficient basis to dismiss the applications in respect of the second and fifth respondents and in doing so, the Commissioner erred.

[37] Ready Workforce submits that, on these grounds, permission to appeal should be granted. It says that the appeal highlights the importance of ensuring the statutory scheme in the FW Act for protecting ongoing employment is maintained, and that considerations of fairness are applied to the provision of redundancy payments to employees who obtain new employment at the same site doing the same work on broadly the same or higher wages and conditions.[44] Further, it says that it is in the public interest that the Full Bench clarifies the decision, which it says is contrary to the Full Court decision in FBIS.

[38] On behalf of the respondent employees identified at [4] above, the CFMMEU submits that the grant of permission to appeal is not in the public interest. In relation to the first appeal ground, the CFMMEU says that the Commissioner's approach was entirely consistent with the decision in FBIS. The CFMMEU says that the Commissioner correctly concluded that there was little effort by Ready Workforce to obtain employment for the respondent employees, as it had not obtained any assurances from the incoming employer about any aspect of the respondent employees' employment. It says that the contention that the Commissioner adopted four incorrect tests is not made out.

[39] With respect to appeal ground two, the CFMMEU accepts that there is no finding in respect of whether the employment that was "obtained" for the first respondent was acceptable. It is not in dispute that this issue only falls to be determined if appeal ground one succeeds on appeal.

[40] By appeal ground one, Ready Workforce contends that the Commissioner did not apply s 120 of the FW Act in the manner explained by the Full Court in FBIS. In the context of this ground of appeal, the circumstances arising in FBIS necessitate some explanation.

[41] FBIS was a labour hire company. Following the loss of a contract for the provision of security services to Asciano Executive Services Pty Ltd, employees of FBIS were offered and accepted employment with ACG National Pty Ltd (ACG), which had been successful in replacing FBIS as the security services contractor. Of the 49 relevant employees, 48 were offered and accepted employment with ACG in the same position, and on the same terms and conditions of employment. One employee was offered and accepted employment in a lesser position. In all cases, ACG did not recognise the relevant employees' previous service with FBIS. FBIS made an application to the Commission under s 120 of the FW Act on the basis that it had obtained other acceptable employment for each of the employees who were offered and had accepted employment with ACG.

[42] The first instance decision-maker determined that FBIS had obtained, for the purposes of s 120(1)(b)(i) of the FW Act, the alternative employment for the relevant employees with ACG. Further, the Commissioner was satisfied that the employment with ACG was essentially the same as the relevant employees' employment with FBIS. In the case of 48 of the relevant employees, the Commissioner reduced the redundancy payable to nil. The redundancy payable to one employee was reduced by 50 per cent.[45]

[43] The Maritime Union of Australia lodged an appeal against the decision and orders in that matter.[46] The Full Bench determined, on appeal, that FBIS had not obtained acceptable employment for the relevant employees with ACG and dismissed the s 120 application. The Full Bench considered that the limited actions of FBIS did no more than facilitate the entry of its employees into the recruitment processes of ACG, and this fell "well short" of action which "causes acceptable alternative employment to become available to the redundant employee." The Full Bench concluded that FBIS was not a "strong moving force towards the creation of the available opportunity."[47]

[44] The reference by the Full Bench to the requirement for an employer to be a "strong moving force" was drawn from a decision of the Full Bench of the Australian Industrial Relations Commission in The Australian Chamber of Manufactures v Derole Nominees Pty Ltd; Re Clothing Trades Award 1982[48] (Clothing Trades). The Full Bench in Clothing Trades considered what is required by the word "obtains" under analogous provisions,[49] and determined that the word does not mean to "obtain" in the fullest sense possible, noting that the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the new employer, and not the outgoing employer. Rather, the Full Bench concluded:[50]

"... the employer's ability to 'obtain' alternative employment...refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity."

[45] FBIS applied to the Federal Court for judicial review of the decision of the Full Bench.[51] The Full Court unanimously dismissed the application. Relevantly, the Full Court disapproved of the Clothing Trades test which had considered whether the employer was "a strong moving force towards the creation of the available opportunity." In this respect, the Full Court stated:[52]

"Returning to Clothing Trades, the actual outcome in that case demonstrated that there could be cases in which an exemption was granted from the operation of the standard award provision notwithstanding that an alternative employment relationship did not come into existence at all. In its reasons, the Full Bench characterised an outcome of this kind as implying a particular connotation of the word 'obtains'. However, we would regard such an outcome as an instance of the reality that any new state of employment could only come about by the agreement of the new employer and the employee concerned. In this respect, we agree with Marshall J, in [Allman v Teletech International Pty Ltd], that to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice. If the employment is not accepted, the question whether that employment was 'acceptable' will then arise."

[46] The Full Court regarded the "strong moving force" test from Clothing Trades to be "a distraction" which would "introduce unnecessary complications into the connotation of an ordinary word."[53]

[47] The Full Court determined that FBIS had merely facilitated the employment opportunities with ACG, which fell short of obtaining offers of employment which the employees could accept or decline as a matter of choice. The Full Court concluded that the term "obtain" means the following:[54]

"With respect to the Full Bench's reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one's own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to 'effort', and to 'purpose and effort' in this meaning as implying the existence of some kind, much less a strong kind, of 'moving force' in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the 'general' connotation of the word - 'to acquire, get' - should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation."

[48] Before us, Ready Workforce contends that the Commissioner did not apply the test in FBIS, set out above. Ready Workforce points to the test of "procurement" espoused in FBIS and submits that the Full Court rejected the use of a further stricter test such as a requirement for the former employer to be the moving force in the process.[55]

[49] At the outset, it is appropriate to record that we do not accept Ready Workforce's construction of FBIS to be correct insofar as it contends that the "strong moving force" test is stricter than the test of procurement set out in FBIS. We are of the view that the requirement to procure something outright imposes a higher threshold test than simply being a "strong moving force" in respect of it. As identified by the Full Court in FBIS, an employer "obtains" other acceptable employment when it acquires or gets the employment by its conscious, intended acts.[56] It is against this construction that we turn now to consider the steps taken by Ready Workforce in our assessment of the matters raised by appeal ground one.

[50] The uncontested factual findings disclose that Ready Workforce relevantly communicated with the impacted employees on three occasions following the loss of the contract at the Mount Arthur Coal Mine. The first communication was issued on 30 September 2021. It relevantly informed the employees that they would have an opportunity to apply for roles with Programmed. The correspondence advised the times and dates upon which Programmed would be conducting information sessions. The second employee communication was issued on 1 October 2021. It relevantly provided a link to the Programmed website and stated, "we have been advised of a landing page on the Programmed website where you can access the range of roles that they will have available and where you will be able to express your interest."[57]

[51] The Chief People Officer at Ready Workforce, Mr Graham, gave evidence that these two employee communications were similar in that they notified the relevant employees of the Programmed-arranged information sessions, the available times and contained a general encouragement to attend.[58] Mr Graham accepted that these emails established the extent to which Ready Workforce provided assistance to the relevant employees.[59]

[52] The third employee communication was issued by Ready Workforce on 15 October 2021 advising permanent employees of their notice provisions.[60] The communication also advised that Ready Workforce was strongly committed to working with Programmed, "so that you will obtain an offer of permanent employment at the same classification and at the same, or higher, pay rate." It is therefore apparent that as of 15 October 2021, Ready Workforce was unaware that Programmed had already offered employment to the second respondent employee,[61] the third respondent employee,[62] the fourth respondent employee,[63] and the tenth respondent employee[64] on 12 October 2021, and that each of these respondent employees had accepted the offers on 14 October 2021.[65]

[53] The 15 October 2021 employee communication further advised that Ready Workforce had "engaged extensively" with Programmed and would continue to do so. The extent of Ready Workforce's engagement with Programmed to that date, however, cannot be described as extensive, in our view. The discussions that took place directly between Ready Workforce and Programmed in the relevant period were set out by the Commissioner in the decision at [14] to [16]. The first of these discussions occurred on 1 October 2021 between the respective Chief Executive Officers for Ready Workforce and Programmed. This conversation involved reaching agreement that a meeting would be convened between Mr Graham and his counterpart at Programmed, Mr Kevin Cameron.

[54] On 5 October 2021, Mr Graham telephoned Mr Cameron to advise that he sought to endorse Ready Workforce's employees performing work at the Mount Arthur Coal Mine and had a "goal of obtaining employment for them with Programmed."[66] Following the telephone call, Mr Graham sent a list to Mr Cameron of the names of Ready Workforce's permanent employees performing work at the Mount Arthur Coal Mine. Mr Graham gave evidence that he was not personally aware of the capability or otherwise of the identified employees.[67] Accordingly it can be inferred that this list, which is not in evidence, simply identified the relevant employees by name only.[68] Further, it is not in dispute that Ready Workforce did not provide letters of recommendation to Programmed in respect of any of its onsite employees.[69]

[55] On 11 October 2021, Mr Graham sent an email to Mr Cameron in which he sought to ascertain the status of Programmed's recruitment process.[70] Mr Graham emphasised the 12 respondent employees to this application by name, identifying them as "our more experienced people."[71] Mr Cameron responded to this email on 12 October 2021. In respect of the respondent employees, Mr Cameron advised that he had "asked about the particular individuals" and hoped to provide a timely response.[72]

[56] On 14 October 2021, Mr Graham sent further correspondence to Mr Cameron seeking an update, "especially for the more experienced employees." Mr Graham invited information about Programmed's selection process so that Ready Workforce could "provide tailored assistance to our people." Mr Graham also offered the provision of a letter of recommendation to Programmed, detailing the employment history, skills and performance of its employees.[73]

[57] As earlier stated, the second to twelfth respondent employees received offers of employment with Programmed around 12 to 20 October 2021.[74] It is not in dispute that these offers were accepted and each of those employees commenced employment with Programmed.

[58] It is against this background that the Commissioner concluded that the evidence did not disclose that the actions of Ready Workforce "operated as the primary means by which the alternative employment of the respondent employees with Programmed was secured." Nor did it demonstrate that Ready Workforce had "negotiated and secured any assurances from Programmed regarding any aspect of the employment of the respondent employees with Programmed."[75]

[59] Further, the Commissioner stated that "evidence must be provided upon which to establish that the employer did more than facilitate and assist employees to participate in a recruitment process in the hope that they receive offers of employment." The Commissioner concluded that "Programmed clearly maintained the unfettered option to engage or not engage any of the employees"[76] of Ready Workforce.

[60] Ready Workforce contends that in reaching the conclusions set out at [58] and [59] above, the Commissioner applied four tests which are inconsistent with the position in FBIS. However, for the reasons that follow we do not accept this contention. Rather, it is apparent from these findings of fact, which are not challenged on appeal, that Ready Workforce did not procure the employment with Programmed in the manner explained by the Full Court in FBIS.

[61] The employee communications issued by Ready Workforce on 30 September and 1 October 2021 simply advised employees of the date and time at which Programmed would be facilitating information sessions and directed the employees to the Programmed website to identify for themselves the available roles and the manner in which they could express an interest in being considered for these roles. There is no evidence to support a finding that Ready Workforce was aware of whether the respondent employees had been offered employment by Programmed, or the terms and conditions which attached to any such offer, being matters necessary to establish that the employment had been relevantly procured. The 14 October 2021 enquiry from Mr Graham, at a time when the second, third, fourth and tenth respondent employees had already been offered and accepted roles with Programmed, bears this out.

[62] Furthermore, Ready Workforce did not adduce any evidence that demonstrated that it conferred with Programmed about any of the respondent employees such that it could be said that its actions procured or acquired their employment. While Mr Graham offered to provide Programmed with a letter detailing the relevant employment history, skills and performance of its employees, such invitation was not taken up by Programmed and, on the evidence, never provided. The action taken by Ready Workforce to merely produce a list of employee names, together with the transition of certain training records and medical information to Programmed is, of itself, entirely insufficient to found a conclusion that Ready Workforce had procured the relevant employment.

[63] In light of the above matters, the material advanced by Ready Workforce in support of its position was insufficient to satisfy the test of procurement established by the Full Court in FBIS. Ready Workforce did not obtain the employment with Programmed in the sense that it did not acquire or get the employment by its conscious, intended acts.[77]

[64] It follows that we discern no appealable error in the Commissioner's conclusion that the actions of Ready Workforce did not satisfy the test in s 120(1)(b)(i) of the FW Act as it relates to any of the respondent employees. To the extent that the Commissioner appears to have applied the "strong moving force" test in his consideration of the circumstances, the Commissioner employed a test more favourable to Ready Workforce's position than the test of procurement espoused by the Full Court in FBIS. We therefore reject the contention that the Commissioner employed a "further stricter test".

[65] We accept, as the Commissioner did, that Ready Workforce may have assisted and facilitated the potential for the respondent employees to secure employment with Programmed. Ready Workforce submits that the Commissioner's finding at [49] of the decision in this respect was a sufficient basis for concluding that it had obtained other acceptable employment for the respondent employees.[78] However, Ready Workforce has not identified how such a conclusion is available in circumstances where, as the Full Court in FBIS made clear, the mere facilitation of employment is insufficient to satisfy the statutory test. It follows that this contention cannot be sustained.

[66] We are satisfied that the answer which the Commissioner gave to the question raised by s 120(1)(b)(i) of the FW Act was correct. For the reasons given, no appealable error is disclosed in respect of the Commissioner's conclusion that the statutory test had not been met. It follows that appeal ground one fails.

[67] In light of our conclusion regarding appeal ground one, the appeal cannot succeed on the basis of appeal ground two, as Ready Workforce accepted.

[68] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision-maker.[79] There is no right to appeal and an appeal may be made only with the permission of the Commission.

[69] Subsection 604(2) of the FW Act requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[80] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[81] In GlaxoSmithKline Australia Pty Ltd v Makin[82] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[83]

[70] Permission to appeal may otherwise be granted on discretionary grounds. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[84] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[71] The failure by Ready Workforce to demonstrate appealable error leads us to conclude that it is not appropriate to grant permission to appeal either on public interest or discretionary grounds. Permission to appeal is therefore refused.

A Guy of counsel, for the respondents Lowe, Lindsay, Munro, Barbara, Snelgrove, Ditchfield, McFarlane, Farrow and Keller (represented by the CFMMEU).

[There was no appearance for respondents McIntyre and Eason.]

Sydney in person and Melbourne via Microsoft Teams:

[1] Ready Workforce (A Division of Chandler Macleod) Pty Ltd T/A Chandler Macleod [2022] FWC 1352

[3] While the application below was made in respect of 12 employees, one of them was deceased by the time the appeal was lodged - and indeed by the time the Commissioner heard the application: [2022] FWC 1352 at [7]. Thus there are only 11 respondents to the appeal.

[19] Mr Andrew Lowe, the first respondent employee below, was not offered employment with Programmed: [2022] FWC 1352 at [18].

[20] AB 190 at [33]; AB 191 at [38]; AB 192 at [43] and [48]; AB 193 at [56]; AB 194 at [61] and [66]; AB 195 at [71]; AB 196 at [76] and [81]

[23] Australian Commercial Catering Pty Ltd v Powell & Togia [2016] FWCFB 5467 at [35]

[24] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90; 232 FCR 1; 250 IR 476 at [21]

[25] [2022] FWC 1352 at [11]- [16]

[33] [2014] FWCFB 6737; 245 IR 287

[34] [2022] FWC 1352 at [45]

[43] [2015] FCAFC 90; 232 FCR 1; 250 IR 476

[44] Fair Work Act 2009 (Cth), s 3

[45] FBIS International Protective Services (Aust) Pty Ltd [2014] FWC 1922; PR550817; PR550814

[46] Maritime Union of Australia, The v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737; 245 IR 287

[48] Print J4414; Re Clothing Trades Award 1982(1) [1990] AIRC 980; (1990) 140 IR 123

[49] Clothing Trades Award 1982 clause 51(e), which relevantly read "...An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee"

[50] [1990] AIRC 980; (1990) 140 IR 123 at 128

[51] FBIS International Protective Services (Aust) Pty Ltd v MUA and Fair Work Commission [2015] FCAFC 90; 232 FCR 1; 250 IR 476

[55] AB part 2, 22 at [3]

[56] FBIS International Protective Services (Aust) Pty Ltd v MUA [2015] FCAFC 90; 232 FCR 1; 250 IR 476 at [20]

[65] AB 192 at [48]-[49]; AB 194 at [61]-[62]; AB 194 at [66]-[67]; AB 195 at [71]-[72]

[71] Together with the name of one additional employee not the subject of the application before the Commissioner.

[75] [2022] FWC 1352 at [43]

[77] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90; 232 FCR 1; 250 IR 476 at [20]

[78] Appeal Book part 2, 11 at [10]

[79] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[80] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46]

[81] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

[82] [2010] FWAFB 5343, 197 IR 266

[84] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

Printed by authority of the Commonwealth Government Printer