[1] This matter arose from a s.170LW application by the Shop, Distributive and Allied Employees Association (the SDA) in matter C2002/1427 in relation to the Target Retail Agreement 2001 (the Agreement) [AG807124] and, in particular, a dispute between the SDA and Target Australia (Target) as to whether alternative employment offered to a member, Mr Chapman, upon the closure of the Keon Road Off-site Reserve at which he worked, constituted acceptable alternative employment, which would relieve Target from an obligation to pay redundancy benefits to Mr Chapman.

[2] In a conference of 14 March 2002, it became evident that as a prima-facie position within the agreement, Mr Chapman was entitled to the benefit of severance pay. However, clause 4.6.17 of the Agreement made provision for Target to make application to vary the entitlement to severance pay in circumstances where Target obtained acceptable alternative employment for Mr Chapman. On 18 March 2002, Target made a s.170LW application to vary the severance pay prescribed in the Agreement in respect of Mr Chapman on the basis that Target had obtained acceptable alternative employment for him.

[3] Prior to the hearing the parties reached agreement on the following facts:

"1. Neil Chapman is employed on a full time basis by Target Australia Pty Ltd as a Truck Driver at the Keon Road Off-site Reserve (`OSR') (`Old Position').

2. Mr Chapman's employment is governed by the Target Retail Agreement 2001 [AG80712: PR903554_]._

4. On 30th January 2002 employees at the Keon Road OSR were advised that the site would close on 8th March 02.

5. On 4th February 2002, Mr Chapman was provided with details of an alternative position at the Laverton OSR (`New Position').

6. The New Position is materially the same as Mr Chapman's Old Position, save for the location.

7. The distance from Wallan, Mr Chapman's town of residence, and the two off site reserves is as follows:

8. Under the Target Retail Agreement 2001, Clause 4.6.17 the Company may apply to the Australian Industrial Relations Commission to have the severance pay prescribed in Clause 4.6.10 varied if Target obtains acceptable alternative employment."

[4] The parties provided a number of decisions which dealt with the issue of acceptable alternative employment, in the context of the operation of both awards and agreements:

· P & O Cold Logistics/National Union of Workers Footscray Agreement 2000-2002 (P&O) [Print PR914664];

· Dick Smith Electronics Distribution Centre Enterprise Agreement 1999 [Print PR908172]; and

· Alexander and Australian Cutting Systems Pty Ltd formerly Laser Lab International Pty Ltd [Print PR902669].

[5] In P & O , Williams SDP set out the following test:

"[6] The issue between the parties is whether or not, for the purposes of Clause 17.2.4, three particular employees have been offered `acceptable alternative employment'.

[7] The test to be applied to determine whether or not the alternative employment offered is `acceptable' is an objective one. Whether particular employment for an employee is `acceptable' must be determined according to objective standards. There is an onus on the employer seeking to invoke such an exemption clause to make out a case for an exemption."

[6] In the Clothing Trades Award, a Full Bench stated that a variation to severance pay entitlements might involve full or partial relief and confirmed the application of objective standards, citing a decision in Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd [(1988) 27 IR 226]:

"We do not propose to repeat here the thoroughly detailed argument presented by counsel for the union. A considerable part of that case was devoted to questions of onus, and to supporting the proposition that the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters. It was argued that the failure of the employer to adduce evidence of such matters caused the company to fail to make out a case for an exemption. We have no doubt that there is an onus on the employer invoking subclause 51(c) and that matters of the kind referred to by the union may be relevant in assessing the position in a particular case."

· the onus is upon Target to justify variation of the severance benefits available to Mr Chapman;

· it is necessary to apply objective standards in the circumstances of the particular case, having regard to a range of considerations such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters.

[8] The decisions relied upon also disclosed that additional travel time to and from work, dislocation associated with additional travel and cost of such travel may be relevant matters.

[9] As is evident in the facts agreed between the parties, the new position is materially the same as Mr Chapman's old position.

[10] In the circumstances of the present matter, it is clear:

· the position offered to Mr Chapman is at the same level and involves the same duties as that occupied by him at the Keon Park site;

· there is no change in the remuneration to be paid to Mr Chapman in his new position;

· the change in location would not affect Mr Chapman's continuity of employment;

· Mr Chapman's conditions of work would not change as a result of his changed location of work; and

· no change in the method of work or job security would arise from his changed location of work.

[11] The material changes which would confront Mr Chapman relate entirely to, or arise out of, the change in location of Mr Chapman's employment and the associated additional travel to and from work. This matter must be considered, together with all other aspects of the alternate employment offered, to objectively assess whether the new position constitutes acceptable alternative employment which would justify variation of the severance benefits otherwise available to Mr Chapman as a result of his Keon Park position becoming redundant.

[12] The parties agreed facts disclose that the new location would result in an increased distance to work (and an equivalent additional distance for the return journey) of 22 km, with the distance increasing from 38 km to 60 km (one way). On the day on which the parties undertook the travel to establish the agreed facts an additional travel time of 16 minutes (one way) was recorded, increasing from 29 to 45 minutes. The SDA contended that the time of travel for the purpose of establishing agreed facts was such that traffic conditions were light and that the increased time of travel would be greater at the time of actual travel by Mr Chapman.

[13] The SDA contended that there are several dimensions to the change in location:

· an increased distance of travel to and from work of 44 km per day;

· an increased time of travel in excess of 32 minutes per day;

· an increased cost of travel, to the order of around 15% of his take home pay; and

· occupational health and safety issues associated with fatigue, given his position as a driver.

· the additional distance of travel to and from work was limited;

· the additional travel time of 32 minutes a day was limited;

· Mr Chapman had access to a vehicle which provided an efficient and direct mode of transport;

· the additional cost of travel was limited, at around $15-20 per week; and

· no issue of fatigue arose given that Mr Chapman's position involved rest breaks and a diversity of work, with driving duties occupying only half of his work day.

[15] In respect to the travel issues raised, I find:

· the additional distances involved in travel to and from work are of the order of 44 km per day and are relatively limited;

· the increased travel time per day, of between 30-40 minutes per day, is not onerous;

· Mr Chapman would occur additional travel costs. I would put these at the level of around $25-30 per week or around 6% of take home pay. I find the SDA estimate based on RACV data to overstate the cost because it incorporates increased fixed costs into the calculation. The Target estimate of $15-20 is too low because it accounts only for additional petrol costs and does not reflect additional costs in respect of other variable costs associated with the operation of a motor vehicle; and

· whilst I accept that Mr Chapman is genuinely concerned about fatigue, there is no objective basis for finding that occupational health and safety risks concerning fatigue arise from the additional travel to and from work. The SDA relied on various Worksafe documentation concerning driver fatigue. That material was associated largely with consistent long distance driving. The material before me discloses that, although driving occupies a majority of his working time, Mr Chapman's duties do not involve constant driving and he has rest breaks available to him. The only true test of whether the new location raises issues of fatigue will come with experience of work by Mr Chapman in his new position. In the event that he has concerns about fatigue following experience in the new position, these concerns should be raised with and addressed by Target. The Worksafe material discloses that there do exist means of identifying and addressing fatigue should it arise in practice.

[16] Whilst the submissions before me were concentrated on the increased distance between Mr Chapman's place of residence and his new work location, in considering whether the new position, objectively viewed, constitutes acceptable alternative employment, I am bound to consider the alternate employment as a whole. In all respects but travel to and from work the new position is on equal terms with Mr Chapman's old employment. I am satisfied that the one area of difference, and all of its manifestations, is not so significant as to render the new position unacceptable. The additional distances and time of travel do not, in my view, render the new position unacceptable. There is an additional cost borne by Mr Chapman but, whilst I believe that some recompense should be made to Mr Chapman to relieve that burden, I do not regard this consideration and the additional time and distance of travel, to render the new position objectively unacceptable when viewed in the broader context of the position as a whole. I am satisfied that the new position is acceptable alternative employment which justifies variation of the severance pay entitlement as it should apply to Mr Chapman in the circumstances of this matter. In my view, that variation should take the form of a variation to clause 4.6.10 to the effect that the severance pay entitlements shall not apply to Mr Chapman in respect of redundancy arising from the closure of the Keon Park Off-site Reserve in light of the obtaining by Target of acceptable alternative employment at the Laverton Off-site Reserve.

[17] The Agreement will be varied in that manner, pursuant to subclause 4.6.17 of the Agreement. In this context, a note to s.170MD(7) of the Act, which confines the circumstances in which certified agreements may be varied, provides that "Subsection (7) would not apply to an agreement in so far as the obligations under the agreement can change because of the terms of the agreement itself."

[18] Two further matters arise. First, in the event that Mr Chapman, with experience in the new position, has concerns about fatigue, these concerns should be raised with, and addressed by, Target. Second, insofar as Mr Chapman will incur additional travel costs, it is my view that a transitional payment of $25 per week should be made to Mr Chapman, subject to the absorption of this payment from future wage rises arising out of the Target Retail Agreement 2001, future agreements or any award entitlement. Such a payment will assist Mr Chapman to meet additional travel costs and provide an opportunity to adjust to such additional costs, over the period in which absorption has effect.

[19] I propose to vary clause 4.6.10 of the Target Retail Agreement 2001 to add a new subclause 4.6.10(d) as follows:

"(d) provided that the severance payments prescribed in this clause shall not apply to Mr Neil Chapman in respect of redundancy arising from the closure of the Keon Park Off-site Reserve in light of the obtaining by Target of acceptable alternative employment at the Laverton Off-site Reserve and providing Target Australia Pty Ltd pay to Mr Chapman a dislocation payment of $25 per week, subject to absorption of this payment from wage rises arising out of this agreement, future agreements or any award entitlement after the date on which this agreement was varied to include this subclause."

J Cerritelli for the Shop, Distributive and Allied Employees Association.

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