Fair Work Act 2009_

s.394 - Unfair dismissal

Steven O' Donnell, Phillip Gardner, Joseph Fogg,

Resource Pacific Pty Limited T/A Ravensworth Underground Mine

(U2013/2313), (U2013/2314), (U2013/2315), (U2013/2320), (U2013/ 2328),

(U2013/2329), (U2013/ 2330), (U2013/ 2331), (U2013/2334), (U2013/2335),

[1] In mid July 2013, 15 applications pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal were lodged against the Applicants' former employer Resource Pacific Pty Limited t/a Ravensworth Underground Mine (the Respondent). By the time the matter was set down for hearing there were 12 applications.

[2] The applications were lodged by the Construction, Forestry, Mining and Energy Union, Mining & Energy Division (the CFMEU) which represented the Applicants during the proceedings.

[3] The Respondent is part of the Glencore Xstrata Group of Companies (the Group).

[4] The matter was listed for conciliation on 12 August 2013 but did not proceed. A conciliation before Commissioner Stanton on 30 August 2013 failed to reach a settlement.

[5] I conducted a programming hearing by teleconference on 19 September 2013. Agreed directions were issued and the matter was listed for hearing in Newcastle on 9 - 12 December 2013.

[6] The Applicants were represented by Mr A. Kentish of the CFMEU and the Respondent by Mr J. E. Murdoch QC.

[7] I issued a notice to produce on the application of the CFMEU on 22 November 2013 relating to work done by contractors, overtime performed and internal advertisements in May to September 2013.

[8] The Applicants relied on oral evidence and submissions and:

• Further written submissions filed on 17 December 2013.

• The witness statement of Jeffrey Drayton, Vice President, CFMEU Mining & Energy Division, Northern Mining & NSW Energy Branch.

In the interests of clarity I have set out below a table of the final status of the Applicants.

[10] It can be seen that, of the 12 applications which were pressed by the CFMEU one, Michael Bower, did not provide a witness statement or oral evidence and another, Steven O'Donnell, did not give oral evidence. It was agreed between the parties, and I accepted, that Michael Bower's statement be admitted in a substantially truncated form (see Transcript PN1865 - PN1906).

[11] In summary, whilst there were 12 applications formally on foot and pressed by the CFMEU, there were 10 applications the subject of active consideration at the hearing and subsequent proceedings.

[12] The Respondent relied on oral evidence and submissions and:

• Further written submissions filed on 9 January 2014

Marc Kirsten, Operations Manager, Ravensworth Underground Mine.

Anthony Galvin, General Manager, Ravensworth complex.

Sarah Elliott, Human Resources Co-Ordinator, Ravensworth Underground Mine.

Sara Martin, Human Resources Co-Ordinator, Ravensworth Underground Mine, June 2011 - May 2012

[13] On 5 February 2014, I drew the parties' attention to the Full Bench Decision which had been handed down on 29 January 2014, Technical and Further Education Commission t/a TAFE NSW v L Pykett [2014] FWCFB 714 (Pykett) and invited them to make further written submissions prior to the finalisation of this decision.

[14] These were received from both Mr Kentish and Mr Murdoch on 25 February 2014.

[15] The Applicants were notified by letter signed by Mr Kirsten, the Respondent's Operations Manager, dated 24 June 2013 that as a consequence of the restructure of the underground mine they would become redundant with effect from 1 July 2013. The letter went on to say:

"The Company has reviewed other employment opportunities within the Group, and will continue to do so, to ascertain whether there are appropriate positions available that suit your skills, competencies and experience. We have explored some positions we consider could be appropriate. However, please refer to Glencore Xstrata website for a list of current vacancies in case there are particular roles for which you want to be considered. Please let me know as soon as possible if you would have an interest in any of these roles.

We will continue to consult with you and your representatives about this decision and its effects. Subject to these discussions and the availability of any suitable alternative roles, your position will become redundant and employment with the Company will end.

Should your employment be terminated due to redundancy, you will receive redundancy pay. Please find enclosed a summary of your estimated final pay, including accrued leave entitlements and redundancy pay calculated in accordance with The Ravensworth Underground Enterprise Agreement 2010.

Over the next couple of days, we will schedule meetings with you to discuss your individual circumstances. To assist, in the meantime, you will not be required to attend for normal duties and will remain on full pay for this week."

[16] The Applicants, in their F2, submit that the dismissals were unfair as there was no genuine redundancy. The Respondent, they assert, is part of "global mining giant Xstrata" with "numerous other coal mines in NSW and Queensland". They further assert that they could have been deployed to other Xstrata operations.

[17] The Respondent, in its F3, states that the date the Applicants were notified of dismissal was on 2 July and the dismissals took effect on that day. The following is the relevant extract from the 2 July letter:

"I refer to my letter of 24 June 2013 and our recent discussions on 28 June 2013.

As discussed, your position has been identified as no longer required by the Company. The reasons for this have been discussed with you and your representatives. We have considered other employment opportunities within the Group, and referred you to a list of possible vacancies. There are currently no appropriate positions available that suit your skills, competencies and experience.

I therefore confirm that your employment will end due to redundancy.

You will not be required to work out your notice period and will be paid in lieu of notice. Accordingly, your employment will end on 2 July 2013."

[18] The Respondent submits that the dismissals were not unfair because they were genuine redundancies within s.389 of the Act.

[19] The Respondent further asserts that it complied with the consultation and redundancy provisions of the Ravensworth Underground Mine Enterprise Agreement 2010 [AE881849](the Agreement) and the Act. It consulted with unions and employees between 9 May 2013 and 1 July 2013. Further, it offered voluntary redundancies and four employees accepted. All Applicants were paid redundancy pay in accordance with the Agreement. They were paid four weeks pay in lieu of notice.

[20] The Respondent argues that it was not reasonable for the Applicants to be redeployed. At the time of dismissal, there were no available positions at the mine or at an associated entity within the Glencore Xstrata Group. Some 74 employees were dismissed or redeployed at that time.

[21] The Respondent states that production levels within the NSW and Queensland mines within the Group have been reduced leading to redundancies across the Group. There has been a Group-wide external recruitment freeze since March 2013. During May and June employees at risk of redundancy were directed to vacancies at other sites, especially in the Hunter Valley. Approximately 19 employees were redeployed.

[22] Even if the Commission is not satisfied that these were genuine redundancies, the Respondent submits the dismissals were not harsh, unjust or unreasonable in the circumstances.

[23] As at 1 July 2013, the Respondent had 283 employees including the 74 made redundant.

[24] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[25] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[26] There was no dispute that the Applicants were covered by the Agreement in compliance with s.382(b). The table in [9] above shows that each of the applicants had completed the minimum employment period required by s.382(a) and defined by s.383.

[27] The Applicants were therefore protected from unfair dismissal.

[28] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[29] A person has been unfairly dismissed if the termination of their employment comes within the definition of "dismissed" for purposes of Part 3-2 of the Act. Section 386 of the Act provides that:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

[30] There was no dispute that the Applicants were dismissed. The CFMEU submits that the dismissals were "not a case of genuine redundancy" and therefore were unfair.

[31] Section 396 provides that the Commission must decide whether the dismissal was a case of genuine redundancy before considering the merits of the application.

[32] "Genuine redundancy" is defined in s.389 as follows:

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

[33] An employer will not be able to rely on the defence of "genuine redundancy" to an unfair dismissal application if it would have been reasonable, in all the circumstances, for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity. Whether it was reasonable to redeploy these 12 applicants is the central question in this case.

[34] Mr Drayton was the CFMEU officer responsible for the Ravensworth Underground Mine (RUM). He gave evidence of the high level of co-ordination and control of the Glencore Xstrata entities.

[35] Material was provided by Mr Drayton, designed to show an increase in coal production within the Glencore Xstrata Group in 2013 and a forecast expansion in their Australian operations.

[36] In his witness statement, Exhibit K4, Mr Drayton asserted that Glencore Xstrata had engaged a labour hire contractor, RUS Mining Services at the West Wallsend Colliery, who had put on eight or nine operators at about the same time as the RUM redundancies. He had raised re-deployment of the Applicants with Mr Galvin, without success.

[37] Mr Drayton also asserted that the Applicants could have been re-deployed to contractors at RUM. These were Downunder Mining, Underground Personnel Pty Ltd and LD Contractors. Immediately after the dismissal of the Applicants "a longwall move was conducted at the Ravensworth Underground mine" to which the Applicants could have been re-deployed. They could also have replaced overtime which was worked at the Respondent's underground mine.

[38] Each of the Applicants testified of their ability to perform the work undertaken by the contractors at RUM. They denied that they were offered redeployment by the Respondent, including at any of its related companies. They were told they could apply for various vacancies. Some did apply, others did not. All said they would have considered any offers of redeployment. None was successful in respect of other vacancies and most testified that they had been treated in a cursory fashion.

[39] Exhibit K1 gave a breakdown of contractor hours at RUM for May - August 2013. Some of the examples were:

[40] Together with about 80 smaller contractors this made 26,393.25 hours in May, for example. The totals were as follows for subsequent months:

[41] On the other hand, the Respondent's Exhibit M10 showed contractor hours in September 2012 totalled 44,546.25.

[42] Most of the Applicant's gave evidence that they should have been offered jobs being done by contractors at RUM and the contractors gotten rid of (see for example, Philip Gardner at Transcript PN781 - PN789, Michael Roe PN1378 - PN1383, Danny Garaty PN1723), and that contractor employee turnover was significant (see for example, Jeffrey Drayton at Transcript PN1009 - PN1012 and PN1139 - PN1147).

[43] Mr Drayton also gave evidence about the importance of the Respondent's commitment to reduce the extent of contract labour when the redundancies were announced and denied that had actually occurred (Transcript PN1070 - PN1076).

[44] Others gave evidence that the contractor at West Wallsend should have been put off to allow them to be employed. However, they were unable to specify what work was being done (see for example Bruce Teterin at Transcript PN1246 - PN1253)

[45] Marc Kirsten, (in his first statement, Exhibit M3) gave evidence as the Operations Manager of the Ravensworth Underground Mine of the co-ordination within the Glencore Xstrata Group. Monthly meetings of managers from mines around New South Wales take place.

[46] Mr Kirsten gave evidence of the commercial pressure on the mine from early 2012 arising from the decline in the coal price and the increase in the Australian dollar.

• In November 2012, production on weekends ceased and 27 positions were made redundant.

• In April 2013, expansion of the mine to extend its life was suspended.

• In July 2013, the restructure leading to the dismissal of the applicants was implemented. He testified that this was common across the Group and indeed, the whole industry.

[47] The July 2013 restructure lead to a reduction in production, development and weekend maintenance work. In summary there were:

[48] Mr Kirsten outlined the process of consultation between the union and employees commencing 9 May 2013. The question of replacing contractors was raised by the CFMEU but rejected by the Respondent on the grounds of skills and flexibility. A meeting of employees at the Singleton Diggers Club took place on the same day. A further meeting with CFMEU officials took place on 13 May and again on 20 May. Various consultations took place through June. A range of options were discussed.

[49] Mr Kirsten asserted that the CFMEU focus was on redeployment opportunities at other Group sites. At paragraph 32 of Exhibit M3 he says:

"Accordingly, and is appropriate in any event, the Company concentrated considerable efforts on trying to increase the number of redeployment opportunities available, ensuring all employees at risk of redundancy were encouraged to indicate if they had any interest in the vacancies and assisting these employees to obtain positions." (Exhibit M3)

Group HR collated positions at other Group sites and distributed them to RUM employees. This description of the process was not challenged in cross-examination.

[50] Mr Kirsten testified that contractor hours at RUM decreased by more than 70% between September 2012 and September 2013. Redeployment of redundant employees to contractor positions was also impossible because regular contractor positions had been eliminated in 2012. However, he had taken steps to reduce the contractor role in respect of drilling, stores, seals work, diesel servicing and concreting. Finally, he asserted that replacing overtime was not raised by the CFMEU or employees during the consultation period. In any event, the Respondent had taken steps to put a cap on it.

[51] In his further statement of 28 November, (Exhibit M4) Mr Kirsten refuted the CFMEU's witnesses' arguments about specific contractors on the grounds of specific skills and equipment and critical time requirements for particular projects. The longwall mine, relied on by the applicants, required specialist experience and equipment and, in any event, commenced more than four weeks after the applicants were dismissed.

[52] Evidence was also given by Tony Galvin, the Manager of the Ravensworth complex to whom Mr Kirsten reports, who confirmed the close co-ordination within the Group (see Transcript PN154 and PN186). He also confirmed the market and economic reasons for the 2013 restructuring. I note that there had been a 15% reduction in the coal workforce within the Group between June 2012 and June 2013.

[53] In his statement, Exhibit M1, Mr Galvin gave evidence of his efforts in co-ordinating redeployment within the Group:

• In late 2012, 26 out of 27 positions made redundant at RUM were redeployed or comprised of volunteers (10 were redeployed to other Group Hunter Valley mines).

• In late 2012 employees were redeployed from Glendell Mine to Ravensworth Open Cut arising from a restructure.

• By mid 2013 there were limited vacancies within the Group.

[54] Mr Galvin gave evidence about the Respondent's financial position, including a negative cash flow in 2012 of $105 million. He also emphasized that the future of the RUM was problematic with future redundancies and shutdown likely. However, under cross-examination, he stated that 2014 redundancies were now unlikely (Transcript PN155 - PN156). RUM is still scheduled to be wound down later this year.

[55] Mr Galvin gave an account of the 2013 consultation process consistent with Mr Kristen's. He emphasized the attention paid to redeployment options within the Group. In his witness statement (Exhibit M1), at [58] he asserts "by 24 June 2013, more than 78 RUM employees had applied for redeployment opportunities". A detailed workforce projection for New South Wales and Queensland mines was produced so that redeployment options were clear. These identified some opportunities at Ravensworth Open Cut and Bulga Underground Mines. These vacancies were brought to the attention of employees being made redundant. As there were more applicants than vacant positions, decisions to engage were made by local management.

[56] The following summary of the Applicants' applications for redeployment is taken from [68] of Exhibit M1:

"a. Mr Anderson did not pursue or express interest in any available position.

b. Mr Bower sought redeployment at Ravensworth open cut as an inexperienced Operator or Mechanical Fitter, and at Ulan as a Mechanical Fitter.

c. Mr Bunn sought redeployment at Ravensworth open cut as an Operator or an Inexperienced Operator.

d. Mr Feeney sought redeployment at Ravensworth open cut as an Inexperienced Operator.

e. Mr Fogg sought redeployment at Ravensworth open cut as an Inexperienced Operator.

f. Mr Garaty sought redeployment at Ravensworth open cut as an Inexperienced Operator.

g. Mr Gardner sought redeployment at Ravensworth open cut as an Inexperienced Operator.

h Mr James sought redeployment at Ravensworth open cut as an Inexperienced Operator.

i. Mr Leggett sought redeployment at Ravensworth open cut as an Operator or Mechanical Fitter, and at Bulga underground as a Development Mechanical Technician.

j. Mr Lye sought redeployment at Ravensworth open cut as an Inexperienced Operator or a storeman, and at Ulan as an Operator.

k. Mr O'Donnell sought redeployment at Ravensworth open cut as an Operator or an Inexperienced Operator, and at Ulan as an Operator.

l. Mr Roe did not pursue or express interest in any available position.

m. Mr Teterin sought redeployment at Ravensworth open cut as an Inexperienced Operator or a Mechanical Fitter; at Bulga underground as a Development or Longwall Mechanical Technician; and at Ulan as a Mechanical Fitter.

n. Mr Wallis did not pursue or express interest in any available position.

o. Mr Watkins sought redeployment at Bulga underground as a Development Electrical Technician.

Obviously they were not accommodated by the Respondent or an associated entity.

[57] In his second statement (Exhibit M2) at [5], Mr Galvin provided the following summary of the redeployment process:

"a. The 2013 restructure at Ravensworth Underground Mine (RUM) resulted in more redundant positions than available vacancies across the Group. This reflected the fact that the redeployment process for RUM employees occurred in the context of other mines undertaking workforce review and restructure processes and a significant number of redundancies being implemented across the Glencore Group. For example, during the May to July 2013 period when the Company was implementing redundancies, the Sydney and Brisbane Group head offices and Accounts Payable and Payroll were also implementing redundancies and were also obligated to explore redeployment opportunities.

b. As such, there were a number of employees at risk of redundancy interested in each vacant position. This included RUM employees and other Group employees whose positions were to be made redundant. There needed to be a process to select employees for the available positions. In order to maximise the redeployment opportunity for RUM employees at risk of redundancy, vacancies were identified as early as possible and a selection process was undertaken at the other Group mines to fill the available positions.

c. In these circumstances, it was not appropriate to simply place an individual employee in a particular vacancy. To do so would deprive some employees who were at risk of redundancy the opportunity for redeployment. It is also not a right the Company has. The employee needs to be willing to accept the role.

d. The selection process for the vacancies to which I refer was not a standard recruitment process. The pool of eligible applicants did not include external applicants. The selection process for each of the vacancies for which one of the Applicants applied resulted in the position being filled by another RUM employee or other Group employee at risk of retrenchment.

e. The selection process for each of the vacancies was managed by the relevant site. I did not determine the outcome of these processes. At Ravensworth Open Cut (which I manage as part of my General Manager position) I instructed the site management team to ensure all available positions went to RUM employees at risk of redundancy. I was not otherwise involved in the selection process at Ravensworth Open Cut. I did not attend interviews or have the "final call" in deciding which employees at risk of redundancy would be given positions.

This summary was not challenged by the CFMEU in cross-examination.

[58] Mr Galvin's evidence was that, with respect to the applications for deployment by the Applicants, he had asked the relevant Manager to interview them.

[59] Sarah Elliot gave evidence of assisting employees with the implementation of the redeployment process.

[60] There are two relevant Full Bench decisions concerning s.398 which I must follow. Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 (Ulan Coal) and Pykett. Ulan Coal was the subject of oral and written submissions. Pykett was handed down after the hearing in this matter and was the subject of written submissions.

[61] At first instance in Ulan Coal, Commissioner Raffaelli, in his first decision [2010] FWA 167, found that terminations resulting from the introduction of contractors could be described as a genuine redundancy.

[62] In his second decision [2010] FWA 4817 at [12] the Commissioner held:

". . . In all the circumstances I do not find that it would have been reasonable for the applicants (or any of them) to be redeployed into work at Ulan where such work is being carried out by contractors."

[13] I also find that there is insufficient evidence that overtime worked could easily be translated into work for the applicants (or any of them).

[14] I find that it would not have been reasonable in all the circumstances for the applicants (or any of them) to be redeployed within Ulan (section 389(2)(a)).

[15] As to whether redeployment would have been reasonable within the enterprise of an associated entity of Ulan, more complex considerations apply.

[63] Having considered the circumstances of each of the applicants, he held at [36]:

"A stark point of difference between the parties concerns what is meant by "redeployment". I do not accept the definition put forward by Ulan. It says one must give the word a broad, practical and purposeful meaning. Its argument results, in effect, to mean employment in an associated entity. In my view, to suggest that redeployment equates to employment elsewhere is not to take an expansive view of the word redeployment. It is to alter its meaning.

[39] If the Parliament had meant section 389(2) to be about employment within an associated entity, it would have said so.

[40] It has long been common for there to be exemptions from redundancy or severance payments where an employer has found acceptable alternative employment for an employee (e.g. the Termination Change and Redundancy cases, [(1984) 9 IR 115] and [(1984) 8 IR 34] (or clause 23.4 of the Agreement). At its highest, that is what Ulan may have done (or it may not even have done that, if the employees can be said to have been largely responsible for securing their new employment). But that is not what section 389(2) requires. Redeployment as envisaged by s.389(2), requires a transfer of the employee. This is so even if it also might mean the entering into a new contract of employment.

[41] Any action of Ulan to make some job vacancies known to employees, taking steps to have associated entities delay closing employment opportunities and then with those associated entities offering employment following an open selection process is not redeployment. It is merely assisting in the gaining of employment.

[43] I find that there has been no redeployment of any of the applicants within the enterprise of an associated entity of Ulan."

[64] The Commissioner concluded at [50] that it was reasonable for the Applicants to be redeployed within the associated entities.

"I have therefore considered Ulan's objections and have rejected them. I note the availability of suitable positions at the enterprises of associated entities of Ulan. In my view it would have been reasonable in all the circumstances for the applicants (excepting those I further discuss below) to have been redeployed in the vacant positions at the other Xstrata mines, and I so find. In making this finding I accept that there is no precision as to which vacancy ought to be assigned to which applicant. There is no ability to determine such, particularly given the passage of time. However, in my view the legislation anticipates such difficulties. It refers to redeployment within "the enterprise" not to a particular position/job within the enterprise. In any case, the section is not aimed at directing conduct. Rather, it is concerned with the consequences of failing to perform certain conduct."

[65] It is worth noting, at this point that Ulan Coal Mines Limited (Ulan) was and is part of the Glencore Xstrata Group as well.

[66] The Commissioner's conclusion about contractors and overtime does not appear to be subject of any detailed consideration. His decision focussed on the application of s.389(2)(b).

[67] On appeal, the Full Bench in its decision [2010] FWAFB 7578 noted that at the time of the dismissals there were clearly vacancies at other Xstrata mines. Ulan took steps to ascertain the availability of positions, facilitated applications but did not give the dismissed employees any preference. They had to compete against all applicants. This was not the case in this matter.

[68] In dismissing the appeal the Full Bench held:

"[25] Because these appeals concern the interpretation of an important section of the Fair Work Act which has not been considered by a Full Bench before we consider that it is in the public interest to grant permission to appeal. We turn first to the interpretation of s.389(2) and to the meaning of the term "redeployed". There are a number of observations to be made at the outset.

[26] First, s.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.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the 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.

[29] It is appropriate to mention some submissions advanced by counsel for Ulan concerning the interpretation of the s.389(2). It was submitted that an employer will not usually have the power or right to transfer an employee to employment by another employer, except in the unusual case where it is provided for in the terms of employment. Accordingly, the use of the term "redeployment" is directed at a broader concept, one which would include employment with the employer or an associated entity at some time after termination for redundancy. It was said that it is appropriate to regard an employee as having been redeployed if the employee is subsequently employed in a different or alternative position by their former employer or by an entity associated with their former employer. While this submission has a number of other implications, it is sufficient to say that it is not consistent with the clear words of the section and would lead to a great deal of uncertainty in its application. As we have already indicated, if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen.

[30] In relation to its appeal, and leaving aside the issues of construction we have already dealt with, Ulan submitted that the Commissioner's decision was wrong because he did not identify the particular positions in a particular enterprise to which each of the six applicants could have been redeployed. He also erred in not taking into account the failure of the employees to pursue job opportunities with the related entities after Ulan had publicised those vacancies. The Commissioner was influenced in this regard by the fact that the employees would have been competing for positions rather than being given some kind of preference. Further, it was submitted that the evidence indicated that the evidence given by four of the applicants did not indicate that at the relevant time they were interested in and ready and willing to take employment away from Mudgee.

[31] The Commissioner found that entities associated with Ulan had vacancies for jobs which were potentially suitable for the dismissed employees and there was no evidence that redeployment from Ulan to the mines operated by these associated enterprises would have any impact on operational efficiency. While the Commissioner decided that some of the employees dismissed by Ulan were encouraged to apply for vacancies at mines operated by associated entities, he also found that neither Xstrata nor its associated entities had a policy of employing persons who might be redundant in other enterprises in the group. In Xstrata's case, this is despite the fact that it had overall managerial control in relation to the mining operations of the associated entities. These findings were open to him. The Commissioner also found no evidence that any of the relevant employees would have been unwilling to be redeployed to one of the other mines. It must be said that all of the evidence was not one way on this issue and, as Ulan's submissions indicate, some of the employees in particular did not display a great deal of energy in following up on vacancies which Ulan brought to their attention. Nevertheless we think it was open to the Commissioner to find that if offered redeployment they would have accepted it.

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer's enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant."

[69] In Pykett, the Full Bench applied and clarified the Ulan Coal decision. I note that this case related to the redundancy of one employee which makes the analysis of the work opportunities easier, it seems to me.

[70] The central issue in Pykett was whether there must be an identified job or position to which the applicants could have been redeployed to satisfy s.389(2).

"[22] Section 389(2)(a) provides an exception to the circumstances in which a person's dismissal was a case of 'genuine redundancy' (within the meaning of s.389(1)). So much is clear from the introductory words of s.389(2): 'A person's dismissalwas not a case of genuine redundancy if ...' [emphasis added].

[23] If s.389(2)(a) is enlivened a person's dismissal will not be a case of genuine redundancy even if the person's employer no longer requires the person's job to be performed by anyone because of changes in the operation requirements of the employers enterprise and any relevant consultation obligations have been met. The subsection then goes on to set out the circumstances which enliven the exception, namely:

"...if it would have been reasonable in all the circumstances for the person to be redeployed within...the employer's enterprise." (emphasis added)

[24] The use of the past tense in this expression directs attention to the circumstances which pertained at the time the person was dismissed.

[25] The word 'redeployed' should be given its ordinary and natural meaning. The ordinary meaning of the word 'redeploy' includes:

"Move (troops, workers, material etc) from one area of activity to another, reorganise for greater effectiveness; transfer to another job, task or function_."_ [emphasis added].

[26] The Explanatory Memorandum to what is now s.389(2) is in the following terms:

"1551. Subclause 389(2) provides that a dismissal is not 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 within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience."

[72] Referring to Ulan Coal, the Full Bench concluded:

"[34] Honeysett is authority for the proposition that for the purpose of s.389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer's enterprise _(_or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] reasonable in all the circumstances for the person to be redeployed ...' in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]'he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances'. The question is whether redeployment within the employer's enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that 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"

[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent's submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the 'genuine redundancy' exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

whether there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.

[38] As we have mentioned, we accept the respondent's submissions as to the proper construction of s.389(2). But that is not the end of the matter. The difficulty for the respondent is that the Commissioner failed to make the requisite finding and for that reason the appeal must be upheld. We now turn to the decision subject to appeal

[40] The Commissioner erroneously focussed on the inadequacy of the appellant's redeployment policy and failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant's enterprise. The failure to make such a finding is an error which warrants correction on appeal. We now turn to the second issue raised in the appeal, whether a reinstatement order must specify the position to which the person is to be appointed."

[73] Other decisions of single members of the Commission are of relevance in deciding this case.

[74] In Sandra Camilleri v Sunbury Bowling Club [2020] FWA 5146 the applicant argued that redeployment could have taken place by replacing casuals. Commissioner Roe held that he could not be satisfied that sufficient casual hours existed for the Applicant to be redeployed.

[75] In James Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows [2012] FWA 3126 the Applicant argued that redeployment should have taken place into roles occupied by labour hire employees, Commissioner Hampton decided:

"[121] I accept for present purposes that where an employer had no ongoing or predictable requirements for some direct employment within its operations, it would not generally be required as a reasonable measure to create a position in order to redeploy a redundant employee. However in this case, there is an ongoing and generally predictable level of demand for the supplementary labour including the regular backfilling of on-going permanent positions; the applicant was an existing permanent employee who had been made redundant and Dowell was under an obligation to genuinely consider mitigation of the consequences; the applicant had stated his willingness to undertake a production role in the knowledge that it would be supplementary (but not casual) in nature; and he had stated his willingness to take individual days of annual leave to cover any days when there was no requirement. In that context, I also note that the applicant had in the order of nine weeks of annual leave that could have been used for that purpose.

[122] Importantly, the redeployment of the applicant could have been accommodated at the time without requiring the employer to restructure its approach to staffing and the use of labour hire more generally. I also observe that if, contrary to present indications, the circumstances become such that there was subsequently no need for regular labour that could be performed by the applicant, Dowell could at that point have assessed redundancy and redeployment options.

[123] In all of these particular circumstances, and noting the fact that there were positions for which Mr Suridge was qualified and suitable and wanted to perform, it would have been reasonable for Dowell to have redeployed the applicant at the time of the dismissal."

[76] In Michelle Haar v Cardboard Cartons Pty Ltd [2013] FWC 1054 Commissioner Roe endorsed the approach of Commissioner Hampton and concluded:

"[31] I agree with the approach taken by Commissioner Hampton. I accept the argument of the Applicant that there is no reason why the question of whether or not work currently performed by labour hire could be performed by the person being made redundant should not be considered. The work is required to be performed and there are no employees of the Respondent performing that work. It is only if there is an employee of the Respondent doing the work that it is not available for the person being made redundant.

[32] There may be good operational reasons why the work performed by labour hire may or may not be appropriate for consideration. The Applicant did not produce evidence or require evidence from the Respondent or cross examine the evidence of the Respondent sufficiently for me to be in a position to decide that the work is available and if so to what extent. There is insufficient evidence before me to be satisfied that it would have been reasonable in all of the circumstances for the Applicant to have been redeployed to perform work currently performed by labour hire workers. It is possible that if consultation had occurred redeployment of this sort may have been achieved.

[39] For these reasons I conclude that if consultation had occurred redeployment opportunities may well have emerged, however, the evidence is insufficient for me to conclude that it would have been reasonable in all the circumstances for the Applicant to be redeployed within the employer's enterprise."

[77] In Mary Stephanou v TAFFCORP Pty Ltd T/A The Athlete's Foot [2013] FWC 1993 Commissioner Lewin accepted that it would not be reasonable to dismiss another employee so that an employee made redundant could be redeployed, but stated as well:

"[30] In considering the factual matrix of this case and the proper application of the words "reasonable in all the circumstances for the person to be redeployed," appearing in section 389(2), the Explanatory Memorandum, in particular the Illustrative Example, would suggest that such circumstances will exist in most, if not all, cases where a vacant position exists or one may reasonably be created within the employer's enterprise, or an associated entity, to which the redundant employee may reasonably be redeployed. I doubt that the Act envisages the Commission determining, except in unusual or particular circumstances, that an employee who is employed in a fulltime ongoing position, which is not redundant, should be dismissed to make way for an employee whose position has become redundant.

[31] I do not entirely rule out a possibility of this kind in certain circumstances. Such a consideration might apply where casual employees or labour hire employees are filling a vacant position on a temporary basis or an employee is yet to commence employment when a position becomes redundant and redeployment comes under consideration."

[78] In Fisher etc v Downer EDI Mining Pty Ltd [2013] FWC 8020 Commissioner Cambridge decided that the Respondent had not adequately considered redeployment options for the Applicants when vacancies clearly existed within the Downer Mining Group. He analysed the circumstances of each of the applicants to determine whether redeployment to the available positions was reasonable.

[79] In Paul Murray v Ventyx Pty Ltd t/a Ventyx an ABB Company [2014] FWC 516 Deputy President Gooley decided that redeployment to an overseas position would have been reasonable.

[80] It can be seen that the Commission has taken a broad and practical approach to redeployment. It has often been constrained by lack of evidence, however, in deciding a particular case.

Were the Dismissals Genuine Redundancies within s.389(1)?

[81] The Respondent must show that it no longer required the Applicants' jobs to be performed by anyone because of changes in the operational requirements of its enterprise and that it complied with the consultation obligations in the Agreement.

[82] Neither of these aspects was contested by the Applicants and I find that they are satisfied.

[83] As a result of the market and economic conditions of the Respondent, the Glencore Xstrata Group and the coal industry generally, 78 positions were no longer required to be performed by anyone. The statements of Mr Galvin (Exhibit M1) and Mr Kirsten (Exhibit M2) set out in detail the circumstances of the downturn and of the RUM production cycle, including the fact that there had been a previous redundancy process at the end of 2012. Paragraphs 46 and 54 of this decision summarise this evidence.

[84] Similarly, although the CFMEU was critical of aspects of the consultation process undertaken by the Respondent, this focussed mainly on the issue of redeployment. Mr Kentish did not argue that the consultation provision(s) in the Agreement were not otherwise complied with.

[85] In any event, the evidence on the consultation process is summarised at paragraphs 19, 48, 53, 55 and 59 of this decision. There was extensive consultation with the CFMEU and the workers identified for redundancy. This commenced as early as practicable after the decision was made to implement operational changes, and this continued until 2 July.

[86] I find therefore that the requirements of s.389(1) are satisfied.

Was it Reasonable for the Applicants to be Redeployed within s.389(2)?

[87] The Applicants must establish this for their dismissals to be decided to be not genuine redundancies. If this is so, the "defence" of "genuine redundancy" available to the Respondent under s.385 will not apply, and a decision will need to be made as to whether the dismissals were otherwise harsh, unjust or unreasonable. An examination of both the employer's actions and individual employees' actions is required. A decision will turn on the evidence relating to each case.

[88] The following appear to be the possible options for redeployment of the Applicants raised by the CFMEU:

(b) as direct employees of an associated entity of the Respondent

(c) as direct employees of the Respondent as a result of the reduction of overtime worked

(d) as an employee of a contractor engaged within the enterprise of the Respondent

(e) as an employee of a contractor engaged within the West Wallsend Colliery, an associated entity of the Respondent.

[89] It was accepted by the CFMEU that redeployment as a direct employee at RUM was not an option for the applicants. Five employees were redeployed into other roles at RUM and given the reduction in production and other work, this was the maximum that could be achieved. I therefore find that redeployment of the Applicants in this regard, would not have been reasonable.

Direct Employees of Associated Entity of the Respondent

[90] This issue was what the Ulan Coal case was about. Given that matter involved a Glencore Xstrata company it would be surprising if the Respondent did not discharge its obligations during the consultation process in this regard.

[91] Relying on Ulan Coal the CFMEU submitted that the Respondent was part of a closely co-ordinated human resources operation. Mr Kentish submitted that, notwithstanding the redeployment process adopted by the Respondent, it had acted contrary to the decision in Ulan Coal because "no preference was given to the applicants over other Xstrata group employees". (Transcript PN2471)

[92] Although the Respondent was a bit hesitant on this question initially, Mr Murdoch conceded that the Glencore Xstrata Group was covered by the "associated entity" provision of s.389(2)(b). (Transcript PN2496 - PN2502). However, he submitted that, unlike in Ulan Coal there was no open selection process.

[93] The Respondent pointed out that 19 employees were re-deployed to other mines within the Group. There was a reduced workforce across the Group, restructuring occurring in other mines and Head Office, an external recruitment freeze and therefore insufficient positions available for the redeployment of all those made redundant. Those Applicants who applied for positions lost out to other RUM employees at risk of redundancy.

[94] The witness statements of Mr Galvin (Exhibit M1) and Mr Kirsten (Exhibit M2) set out the redeployment exercise undertaken. Each confirmed the level of co-ordination within the Glencore Xstrata Group. I have set out in full at [57] of this decision Mr Galvin's summary of the redeployment process. I accept it as accurate. It was appropriately activist. Where there is an excess of applicants compared to available work, the employer will need to engage in a selection process restricted to those employees at risk of retrenchments.

[95] I find that the actions of the Respondent, in this regard, are consistent with the decision in Ulan Coal and that redeployment of the Applicants would not have been reasonable.

[96] The level of overtime at RUM was a contested issue between the parties. The CFMEU submitted that RUM employees were undertaking substantial amounts of overtime before and after the dismissals. They argue this could have been reduced to assist in re-deployment.

[97] The Respondent says that the issue of overtime was not raised as a priority by the CFMEU during the consultation process. In any event, overtime is variable and somewhat unpredictable. Moreover, Mr Kirsten gave evidence that he had taken steps to cap it (Exhibit M3). Exhibit K1, which contained total overtime hours worked in the few months around the dismissals, does not really show what happened to overtime levels and why.

[98] I accept that the issue of overtime is legitimate for the CFMEU to raise in the context of its demand for redeployment. The difficulty is the lack of evidence about the reason for overtime and how it could be translated into work for the Applicants, as Commissioner Raffaelli said in his second Ulan Coal decision.

[99] The Full Bench in Pykett makes it clear that it is not necessary to identify a particular job or position to which the dismissed employee could have been redeployed. However, the Commission must find on the balance of probabilities that there was "a job or a position or other work" within the employer's enterprise (or an associated entity) to which it would have been reasonable in all the circumstances to redeploy the Applicants. There must be evidence for such a finding. However, the evidence is likely to be within the knowledge of the employer, not the Applicants.

[100] It seems there is a difficulty for the Applicants in advancing their case for redeployment, which I will discuss further in the next section. In any event, in respect of overtime, I do not think there is sufficient evidence to support the CFMEU's argument.

[101] I find that the redeployment of the Applicants in this regard would not have been reasonable.

[102] In my view, the decision in Pykett means that "work within the employer's enterprise" would include work carried out by employees of contractors engaged by the Respondent and working within RUM.

[103] The cases referred to earlier in paragraphs [74] to [79] show that members of the Commission have been prepared to consider applications for redeployment to work on a wider basis than simply direct employees of the Respondent, specifically casuals and labour hire employees.

[104] It has been accepted, as a general rule, that it would not be reasonable to create a position in order to redeploy an employee or to dismiss an employee.

[105] The difficulty that the Commission has had is the lack of evidence to determine that redeployment is reasonable in the circumstances.

[106] The list of contractors at RUM are set out in Exhibit K1. However, most discussion related to those listed in paragraph [39] of this decision. The longwall move at RUM was the subject of separate discussion.

[107] I am satisfied that each of the Applicants would have the skills and experience to do the work done by employees of contractors. I also accept that the CFMEU was disappointed its expectations for a decrease in contractors were not met. Whether they were actually not met is not clear however. Exhibits K1 and M10 give a mixed picture of variations in total contractor hours. It seems clear that there was a significant reduction in the 12 months prior to the dismissals.

[108] Mr Kirsten gave evidence that regular contractor positions, used as supplementary labour on work usually done by direct employees, had been eliminated in 2012. He also gave evidence about the specialist skills, experience and equipment of contractors. In addition, with respect to the longwall move, work commenced more than four weeks after the dismissals and lasted for 28 days. The Respondent's submission was that this one-off work was the only reason for contractor hours to vary in July and August. Otherwise the trend was consistently down.

[109] The Respondent submits that the engagement of a contractor to provide labour within an employer's enterprise means that work is not available for deployment. At page five of the supplementary submission of 25 February, Mr Murdoch submits:

"'Available' in the context of s.389(2) of the Act, should be applied in the sense of 'available' to be performed by employees, but not at the expense of a contractor's employees."

[110] I do not think that this is correct if it means that consideration of the work being done by contractors is excluded from consideration as to whether a job, position or other work is 'available' as required by Pykett .

[111] The real difficulty is an evidentiary and practical one. The Applicants were unable to provide enough evidence that work could be made available through the displacement of contractors or put forward a practical proposal as to how this could be done.

[112] This is particularly because the Commission has said, in the cases quoted in this decision, and I accept that:

• displacing existing occupants of positions is not appropriate

• a requirement that there be a complete change in the employer's employment strategy is not appropriate

[113] The difficulty can be seen by the difference in approach by the CFMEU witnesses as to how the contactors should be displaced. Philip Gardner said that contractors should have been displaced and replaced by the employees made redundant (Transcript PN781 - PN789). Mr Drayton said that work could have been made available as a result of the allegedly greater turnover of employees of contractors (Transcript PN1009 - PN1012).

● the precise details of work being done by contractors at RUM when the restructure was announced:

• the details of the employees of contractors and their employment arrangements

• the details of contractual arrangements between the contractors and the Respondent including their expiry dates and whether and how the contracts could be terminated

• the Respondent's projection of its workforce requirements

These could have been demanded of the Respondent at the time, or the requirement for such information to be provided been part of the consultation process contained in the Agreement. In any event, these would be matters for negotiation between the Respondent and the CFMEU.

[115] In summary, in respect of contractors within the Respondent's enterprise, I find that there is insufficient evidence to allow me to decide that there was a job, position or other work available for each of the Applicants at the date of dismissal to which it would have been reasonable to redeploy the dismissed employees.

Employee of Contractor at Associated Entity - West Wallsend

[116] There were eight or nine operators at West Wallsend Colliery, which was also a Glencore Xstrata mine, who were engaged by a labour hire contractor, RUS Mining Services, on the evidence of Mr Drayton (Exhibit K4). The Applicants submitted that this contractor should have been displaced.

[117] As a matter of principle, all of my comments, with respect to contractors set out above, apply to this work. West Wallsend was clearly an associated entity of the Respondent. However, all of the evidentiary and practical difficulties that I have referred to are only increased.

[118] None of the Applicants had much knowledge of the West Wallsend operation other than hearsay.

[119] Accordingly, with respect to contractors within the enterprise of an associated entity of the Respondent, I find that there is insufficient evidence to allow me to decide that there was a job, position or other work available for each of the Applicants at the date of dismissal to which it would have been reasonable to redeploy the dismissed employees.

[120] I am unable to find that it would have been reasonable, in all the circumstances, for the Applicants to be redeployed in accordance with s.389(2). Accordingly, I find that the dismissal of the Applicants were genuine redundancies within s.389(1). The Applicants' claims for unfair dismissal relief pursuant to s.394 are therefore dismissed.

[121] An order (PR548837) giving effect to this decision will issue separately.

J. Murdoch QC with K. Peterson for the Respondent.

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