The meaning of the exception in s 119(1)(a)
51 In considering the meaning of the words of the Exception in s 119(1)(a), it is convenient to begin with the question of purpose. If the object of this redundancy issue was the construction of the text of s 119(1) insofar as it defines an employee's entitlement to redundancy pay, the authorities to which I have referred above (at [20]-[21]) show that purpose is an important consideration. However, I do not consider that principle applies with the same force with the construction exercise required for this redundancy issue. That is so because this issue is solely directed to the construction of the Exception in s 119(1)(a), not the entitlement to redundancy pay prescribed earlier in that section. In saying this, I am not ignoring the fact that, even in construing an exception, the purposive approach to construction may be relevant in the sense that an exception should not be construed so broadly as to undermine the purpose of the benefit to which it applies. The Full Court made this point in Nojin v Commonwealth (2012) 208 FCR 1; [2012] FCAFC 192 at [183] where it adopted the observations of Finkelstein J in Richardson v ACT Health and Community Care Service (2000) 100 FCR 1; [2000] FCA 654 at [23]-[24] as follows:
23 [I]t is as well to direct some comments to the approach that a court should adopt when dealing with legislation such as the Discrimination Act. This type of enactment is concerned with human rights and should be given a construction that furthers its fundamental purpose of eliminating discrimination and advancing equality. No strict construction is required. If the grammatical meaning of the words used does not further the objects of the enactment, then a strict approach to construction must be shunned.
24 As regards the exceptions, however, a different approach is desirable. An expansive interpretation is often likely to circumvent or threaten the underlying object of the legislation. It follows that a strict, and not a liberal, approach is usually required. This will ensure that the overall dominant purpose of the Act is put into effect.
52 Nonetheless, in this instance, as I will attempt to explain later, I consider the text of the Exception in s 119(1)(a) is so prescriptive and confined that there is little room for any such undermining to occur. Similar considerations arise with the related concept of applying a beneficial construction to s 119(1), as urged by United Voice in its submissions. There is support for this approach with respect to the FWA because it has been included in that class of protective and remedial legislation to which a liberal or beneficial construction may be applied: see Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 at [17] citing IW v City of Perth (1997) 191 CLR 1 at 58. See also AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42.
53 However, I consider that approach, too, must be rejected in this instance. That is so because I consider s 119(1) falls into that category of statutory provisions which "strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act" (see Carr v State of Western Australia (2007) 232 CLR 138; [2007] HCA 47 (Carr) at [5] per Gleeson CJ and Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [40] per Crennan, Kiefel, Bell, Gaegler and Keane JJ). In that situation "it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling" (see Carr at [6] per Gleeson CJ). To similar effect see Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54 at [33] per Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed).
54 Section 119 is in that category because, in my view, it seeks to balance the competing interests of employees in the redundancy pay entitlement expressed in the body of the provision with the interests of employers where the exceptional circumstance described in the Exception is said to arise. In this respect, the protective purpose of the former pay entitlement is relatively straightforward. It has already been discussed above when considering the National Employment Standards (see at [15]-[17]). However, the exceptional circumstance to which the Exception is directed is more difficult to discern.
55 Berkeley contended that that exceptional circumstance emerged from the historical origins to the redundancy pay entitlements as reflected in decisions such as the Countdown Stores case and the TCR case as illuminated in Amcor, FBIS International and the two Compass Group decisions. It is therefore necessary to consider those decisions in some detail. The first three, the Countdown Stores decision and the two TCR case decisions (particularly the latter two), formed part of the "test case standards" process which I mentioned earlier in these reasons (see at [16]). The authors of Creighton and Stewart's Labour Law have described that process in the following terms (at para 12.02):
… throughout the 1970s and 1980s, and into the 1990s, the federal industrial tribunal used a series of test cases instigated by unions to develop national standards dealing with a number of key terms and conditions of employment such as parental leave, termination of employment and carer's leave. Technically, these test cases consisted of applications to vary one or more selected federal awards. Having heard submissions from a broad range of interests parties - including State and federal governments, employer and worker organisations, and NGOs - the tribunal would hand down a decision which could then be 'flowed-on' throughout the federal system, and into the various State systems …
56 The expression "ordinary and customary turnover of labour" appears to have been introduced into the industrial relations system in Australia as a precursor to that process in the Countdown Stores decision. That decision concerned the Employment Protection Act 1982 (NSW) which came into effect in that State in late 1982. In the decision, the objects and purposes of that Act were described in the following terms (at 274):
[It] provide[s] that employers give the Industrial Registrar at least seven days notice before giving notice of dismissal to employees; requires the Industrial Registrar to notify the relevant unions of these notices; empowers the Industrial Commission to make orders in relation to such dismissals for the purposes of reaching amicable settlements, and confers jurisdiction on the Industrial Commission to make orders in relation to any such dismissals including orders for severance payments, gratuities, superannuation, benefits, preference for re-employment and retraining.
57 After a large number of employers gave notices to the Industrial Registrar as outlined above, a set of proceedings came before the New South Wales Industrial Commission, of which Fisher J was the President. Fisher J began his decision by discussing the details of the proceedings, the objects and purposes of the Employment Protection Act 1982 (NSW) (as outlined above) and the opening contentions made by the various parties. His Honour then made the following general observations which included the expression "ordinary and customary turnover of labour" (at 278):
I am not aware of any system which loads an ordinary and customary turnover of labour with a significant costs burden in relation to severance as such, or where the object of remedial legislation cannot be fairly described within the three classifications of retrenchment to which I have referred. I would therefore require to be affirmatively persuaded by clear language that it is the intention of this statute to impose upon almost all dismissals, regardless of cause, a costs burden in the midst of the worst economic recession in the last 50 years.
(Emphasis added)
As will become apparent when I come to discuss the TCR case below, the early 1980s economic recession in Australia also had a significant impact on those two decisions.
58 The three classifications of retrenchment to which his Honour referred above appeared to be the dismissal of unsatisfactory employees, the termination of employees employed on an "intermittency" basis and dismissing employees through market-related causes unconnected with the economic recession. Those three classifications were outlined in the immediately preceding paragraphs of the decision, as follows (at 277):
[Unsatisfactory employees]
There is of course in industry and always has been a general turnover of labour. It has been customary for employees' services to be dispensed with because it is the view of management that they are in some way less than satisfactory employees, not appropriately skilled, not appropriately motivated, unreliable or exhibiting other forms of unhelpful conduct in an industrial context, but not amounting to misconduct.
["Intermittency" employees]
Many employees, particularly in the building construction, contracting and sub-contracting industries are employed on terms which contemplate intermittency in employment. Provisions for compensating for holidays and annual leave by making an allowance in the calculation of hourly or weekly rates of pay are often made. Many awards contain a specific factor to compensate for "following the job", ie., for intermittency in employment when one job cuts out and another has to be obtained. Payments on severance would appear to be inappropriate to these circumstances and may contain an element of double counting …
[Market-related dismissals]
Similarly employees have at the height of economic prosperity been dismissed because of seasonal shifts in markets, loss of contracts or changes in contracts not relating to recession, changes in model or product, shifts in marketing emphasis and many other day to day causes removed from the present recession and its mounting toll of unemployment.
59 His Honour went on to contrast these three types of retrenchment with those which were unrelated to employee behaviour or to market-related factors as follows (at 277):
These types of dismissals contrast with dismissals which do not arise in any way from the behaviour of the employee or from ordinary changes in the incidents of employment, but where the employee is dismissed on a collective basis along with others and where the reason for the dismissals lies in the force of adverse economic circumstances, restricting employment opportunities and resulting in collective redundancies. Dismissals arising out of technological change or out of major company restructuring have similar characteristics.
It would appear that Fisher J included these types of dismissals as a part of the third classification above.
60 The original Termination, Change and Redundancy Case (1984) 8 IR 34 was delivered by the Australian Conciliation and Arbitration Commission on 2 August 1984, approximately one year after the Countdown Stores decision. At 74, the Commission referred to the Countdown Stores decision and drew the following conclusions about it:
The decision of Mr Justice Fisher was made in the context of the Employment Protection Act which requires notice and/or reasons for termination to be given to the Registrar in certain instances ...
[T]he decision of Mr Justice Fisher applies only to terminations due to economic grounds. Terminations due to "seasonal shifts in markets, loss of contracts or changes in contracts not relating to recession, changes in model or product, shifts in marketing emphasis" and the like are not included and cases involving "retrenchments due to technological change" and "retrenchments due to company reconstruction, mergers and takeovers" are expected to be dealt with "on the particular merits of the case rather than by way of broad prescription". Further, the decision would not automatically apply in industries which contemplate intermittency in employment where the rate includes a specific factor to compensate for following the job.
The legislation also provides for an employer to request the Commission to take into account "the financial and other resources of the employer concerned" and the "probable effect the order, if made, will have in relation to the employer".
61 These conclusions contrast with the position the Commission came to earlier in its decision where it rejected the proposition that redundancy should be restricted to cases brought about by "technological change or other circumstances within the control of the employer" and expressed the view that "there should [not] be any fundamental distinction, in principle, based on the causes of redundancy". Specifically, the Commission said, at 61-62:
In view of this ingrained feature of existing redundancy provisions, we believe it would be too restrictive to limit our prescriptions to cases where redundancy is brought about by technological change or other circumstances within the control of the employer. Further, we believe that there are difficulties in attempting to isolate the influence of different factors acting on the number and nature of jobs and that to introduce definitional uncertainty into the resolution of redundancy disputes would have unfortunate consequences for industrial relations and the individual employees concerned. Moreover, the reason for the granting of additional notice to employees and the purpose of redundancy payments apply equally to redundant employees whatever be the cause of their termination. Employees, no matter what the reason for the redundancy, equally experience the inconvenience of hardship associated with searching for another job and/or the loss of compensation for non-transferable credits that have been built up such as sick leave and long service leave. In particular, to make a distinction granting severance pay only in cases of technological change, notwithstanding the equality of hardship on employees in all redundancy situations, would be to penalise an employer for introducing technological change. This would not be consistent with the attitude to technological change adopted in these proceedings by the ACTU, the views expressed by the various inquiries into technological change to which we were referred, or the terms of the Summit Communique. In these circumstances, we do not believe that there should be any fundamental distinction, in principle, based on the causes of redundancy.
62 The supplementary decision in the Termination, Change and Redundancy Case (1984) 9 IR 115 came about partly because, after the original decision, the Commission "received a multitude of complaints from employers … and … a suggestion that [it] should revise or reconsider the decision in principle" which it had made (at 115). The Commission refused to reopen its decision to reconsider it at large, but it did agree to give consideration to some of the modifications that the employers had raised with it (at 116). One of those modifications related to the redundancy pay issue. On that issue, the employers contended that "redundancy provisions should not apply to termination of employment 'associated with the general turnover of labour or a seasonal downturn within the industry or reclassification or alteration of working conditions'" (at 128). It was in response to those contentions that the Commission adopted, with qualifications, Fisher J's expression the "ordinary and customary turnover of labour". It said "we are prepared to provide that the redundancy provisions shall not apply where the termination of employment is 'due to the ordinary and customary turnover of labour' but we will not include the other categories referred to by the employers" (at 128). The Commission explained its reasoning for this conclusion in the following terms:
In our decision at 55-6 we made reference to a number of definitions of redundancy and our draft order was based on the definition of the Chief Justice, Bray J. in the South Australian Supreme Court. Further, at 61 of the decision we decided that there should not be any fundamental distinction, in principle, based on the causes of redundancy. Nevertheless, it was not our intention that the redundancy provisions should apply to the "ordinary and customary turnover of labour"; an expression used by Mr Justice Fisher in his decision related to the Employment Protection Act in New South Wales ((1983) 7 I.R. 273).
However, notwithstanding the helpful submissions of the parties in these proceedings, we have some difficulty in finding a suitable expression to make our intention clear. There is no doubt that we did not intend the redundancy provisions to apply where an employee is dismissed for reasons relating to his/her performance, or where termination is due to a normal feature of a business. Furthermore, there is an overlap between the definition of redundancy for the purposes of any award and the categories of employees exempted from severance pay. To some extent the same can be said for the provisions relating to the introduction of change.
(Emphasis added)
63 As Berkeley pointed out, this background to the introduction of redundancy pay entitlements in Australia was later adverted to by the High Court in Amcor. Amcor was decided in 2005. It involved the construction of a clause of an industrial agreement certified under the Workplace Relations Act 1996 (Cth). That clause provided that: "should a position become redundant and an employee subsequently be retrenched", the employee was entitled to certain payments. The question before the High Court was whether "following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of" the aforementioned clause. The question arose in circumstances where the employees concerned "worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed" (see Amcor at [1] per Gleeson CJ and McHugh J). It will be immediately apparent that the High Court was therefore not required in Amcor to consider the meaning of the words "ordinary and customary turnover of labour".
64 Nonetheless, at [42]-[44] under the heading "The legislative background -- awards and redundancy", Gummow, Hayne and Heydon JJ recorded the role that the TCR case had played with respect to the introduction of redundancy pay entitlements as follows:
42 In 1981, the Australian Council of Trade Unions made claims that led, ultimately, to the making of awards providing terms governing the termination of employment, providing for consultation about major changes likely to have significant effects on employees, and providing for terms governing what was to happen in cases of redundancy. The Commission first published reasons determining issues of principle. Having heard further submissions from the parties, the Commission then published a supplementary decision in which it settled the form of order to be made.
43 The Commission said, in its supplementary decision, that it had "some difficulty in finding a suitable expression" to make its intention clear about what constituted "redundancy". In its earlier decision, it had referred to a number of definitions of redundancy. Chief among those was the decision by Bray CJ in R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd which was understood as emphasising that redundancy refers "to a job becoming redundant and not to a worker becoming redundant".
44 For present purposes, what is important is that the Commission appears to have been seeking a form of words that would accommodate two features. First, as was said in the Commission's supplementary decision, it "did not intend the redundancy provisions to apply where an employee is dismissed for reasons relating to his/her performance, or where termination is due to a normal feature of a business". Secondly, the Commission did not intend redundancy provisions to be engaged by the transmission of a business. In its earlier decision, the Commission had emphasised that it did "not envisage severance payments being made in cases of succession, assignment or transmission of a business" …
(Emphasis added; footnotes omitted)
Berkeley placed particular reliance on the words "due to a normal feature of a business" (emphasised at [62] and [64(44)] above) which both the High Court and, before it, the Commission had referred to.
65 One of the other decisions to which Berkeley referred on this aspect was the Full Court decision in FBIS International. The issue in contention in that matter revolved around the meaning of the word "obtains" in s 120(1)(b)(i) of the FWA. However, despite the fact that that section is in Division 11 of Part 2-2 of the FWA, the Court did not consider the meaning of s 119. Nonetheless, it did refer, in general terms, to the TCR case at [8]-[10]. I do not consider that reference took the matter any further than Amcor above.
66 Finally, I should mention the two decisions involving the Compass Group to which both Berkeley and United Voice referred in their submissions. Those decisions directly concerned a clause of two enterprise agreements. Significantly for present purposes, that clause was expressed in substantially identical terms to s 119(1) as follows: "An Employee is entitled to be paid redundancy pay if the Employee's employment is terminated 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". It is also worth noting that the Compass Group, the employer concerned in those two decisions, provided similar services to those that the Spotless Group provided to Lend Lease in this matter. Furthermore, it did so using a contracting services business model similar to that employed by the Spotless Group.
67 At first instance (Compass Group 1st inst), Commissioner Roe analysed Fisher J's decision in the Countdown Stores case and the decisions in the TCR case and came to the following conclusions about the interaction between those two decisions (at [20]-[22]):
[20] A proper reading of the TCR decisions does not suggest that the Full Bench adopted the analysis of Justice Fisher quoted above. Quite the contrary the Full Bench specifically did not restrict severance or redundancy pay to cases of collective dismissal due to adverse economic circumstances, technological change or major company restructuring. For this reason there is no clear link between the expression "ordinary and customary turnover of labour" as adopted by the TCR decision and terminations due to "seasonal shifts in markets, loss of contracts or changes in contracts not relating to recession, changes in model or product, shifts in marketing emphasis and many other day to day causes removed from the present recession and its mounting toll of unemployment." The concept of "intermittency in employment" or "following the job" is however, directly relevant to the concept of "ordinary and customary turnover of labour."
[21] I am satisfied that the Full Bench [in the TCR case] adopted the expression "ordinary and customary turnover of labour" to encapsulate situations where an "employee is dismissed for reasons relating to his/her performance, or where termination is due to a normal feature of a business." A normal feature of a business is a reference to businesses where there is intermittency in employment because of the nature of the business. These are businesses where employment, or part of it, is seasonal, casual, or linked to the duration of a particular contract or task. These are situations where the employee has no reasonable or settled expectation of continuous or continuing employment. This will often be reflected in the casual, seasonal, or fixed term or fixed task nature of the employment arrangement.
[22] I am satisfied that the Full Bench did not generally exclude those employed by contracting firms from coverage under redundancy provisions by the "ordinary and customary turnover of labour" exemption. The Australian economy has changed and contracting firms have greatly expanded in the decades since the TCR decisions. There is no basis for concluding that the Full Bench intended to encourage a particular employment model by providing contracting firms with the competitive advantage of lower labour costs by excluding them from redundancy provisions.
(Emphasis added)
68 Compass Group was granted permission by a Full Bench of the Fair Work Commission to appeal Commissioner Roe's decision which resulted in the Compass Group Full Bench decision (Compass Group FB). The Full Bench also analysed Fisher J's decision and the decisions in the TCR case. After setting out Commissioner Roe's conclusions above, the Full Bench concluded:
[20] We are respectfully unable to agree with the Commissioner on this issue. The TCR Full Bench expressly stated that it did not intend for redundancy provisions to apply to the "ordinary and customary turnover of labour." In doing so, the TCR Full Bench drew on the decision of Justice Fisher and the concept he developed of excluding terminations arising from the ordinary and customary turnover of labour. There is no basis in these decisions for excluding dismissals arising from loss of contracts from the concept where this is a normal feature of the business.
[21] The Full Bench was providing for a new general right of redundancy pay. It was seeking to reflect approaches to redundancy pay arising from previous decisions. Redundancies that arise because of economic circumstances, technological change or company restructure involve a common element of unexpected termination. Termination of employment where an employee has been engaged for a job or contract is in a different category. The TCR Full Bench expressly stated this. It adopted the wording of an Exception developed from previous cases. In the first decision it referred to the decision of Justice Fisher and mentioned employees engaged for contracts. In the second decision it again referred to the decision of Justice Fisher and drew on his formulation of the Exception. Justice Fisher expressly refers to loss of contracts as encompassed within the concept ordinary and customary turnover of labour.
(Emphasis added)
69 After quoting from the decisions of Gummow, Hayne and Heydon JJ and from Kirby J in Amcor and referring to a number of single member decisions of the Commission and a decision of the Industrial Court of New South Wales, the Full Bench concluded that the issue of whether the Exception applied fell to be determined as a question of fact depending on the normal features of the employers' business and the circumstances of each termination. In particular, it said (at [27]):
In order to determine whether the Exception applies in a given case it is necessary to consider the normal features of the business and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business. This is a question of fact, to be determined on the basis of the circumstances of each termination and each business. It necessarily focuses on the business circumstances of the employer.
70 The major point of difference, therefore, between the first instance decision in Compass Group and the Full Bench decision was whether a loss of contract was excluded from, or included in, the concept of "a normal feature of a business". Both decisions accepted that a termination of employment which was due to such a feature fell within the Exception, at least as it was expressed in the clause of the enterprise agreement in question.
71 For present purposes, none of these decisions is binding authority. The decisions in Amcor and FBIS International could have been, but neither dealt with the Exception in s 119(1)(a), nor made any observations in obiter that may have assisted in its construction. Nonetheless, all of these decisions do illustrate the history to the introduction of redundancy pay entitlements in this country and they do disclose the parameters of the debate about the situations to which the Exception was intended to apply. That said, none of this history could truly be described as legislative history in the sense described by the High Court (see at [21] above). That is so because s 119 marks the first occasion upon which a redundancy pay entitlement has appeared in the FWA, or in one of its legislative predecessors. Notably, there was, for example, no similar provision in the Standard in Part 7 of the Workplace Relations Act 1996 (Cth). Consequently, prior to 2009, redundancy pay entitlements were dealt with under Federal and State industrial instruments, including enterprise agreements and awards.
72 Context, particularly statutory context, makes this last distinction important in this matter. This point is probably best demonstrated by the "intermittency" employment that Commissioner Roe considered in Compass Group 1st inst was a "normal feature of a business" and therefore within the terms of the Exception. The Commissioner instanced "situations where the employee has no reasonable or settled expectation of continuous or continuing employment … reflected in the casual, seasonal, or fixed term or fixed task nature of the employment arrangement". If the Commissioner, or indeed the Full Bench in Compass Group FB, had been construing the Exception in s 119(1)(a) of the FWA, rather than in a clause of an enterprise agreement, he would have been obliged (as I am) to take account of the statutory context to s 119(1)(a) reflected by the following provisions of Division 11 of Part 2-2, which excluded many of the examples he thought fell within the Exception:
(a) s 123(1)(c), which excludes casual employees; and
(b) s 123(1)(a), which excludes employees employed for a "specified period of time" or employed for a "specified task" or employed for the "duration of a specified season".
Furthermore, with respect to the latter exclusion, and given his comments about contracting firms (see Compass Group 1st inst at [22], set out at [67] above), the Commission may well have had regard to, what might be described as, the anti-avoidance provision contained in s 123(2) as follows:
Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.
73 These examples of the statutory context to the Exception as it appears in s 119(1)(a) of the FWA serve to demonstrate two things: the limited value of the decisions I have reviewed above when construing the meaning of the Exception; and the very important role that statutory context has in this particular construction exercise. The latter is accentuated in this instance by the principle of statutory construction that the words of a statutory provision must be given some meaning and effect (see Project Blue Sky Inc at [71] and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39]). It follows that the express exclusions mentioned above, together with a number of others contained in Division 11 of Part 2-2 which I have not mentioned, appear to act to confine the Exception in s 119(1)(a) to a narrow set of circumstances. However, as it turns out, it is unnecessary for me to explore those confines because this matter can be disposed of on the text of the Exception and the evidence adduced by the parties, matters to which I will now turn.
74 There are two phrases in the Exception which I consider are pivotal. They are: "this is due to"; and "turnover of labour". The words "this is due to" are pivotal because they indicate what it is that the Exception relates to. Contrary to the submissions of both parties, I do not consider the word "this" is directed to the termination per se. Rather, I consider it is directed to the situation where an employer decides to terminate an employee's employment and also decides that it no longer requires the employee's job to be done by anyone. It is the attachment of the latter decision to the termination that gives rise to the redundancy pay entitlement under s 119 and it is to that feature of the termination that the Exception in s 119(1)(a) applies. Furthermore, the words "due to" introduce a causal relationship between such a termination and the set of labour turnover conditions to which the Exception applies.
75 Next, the words "turnover of labour" are pivotal because they define the set of labour turnover conditions mentioned immediately above. Individually, those words mean (Macquarie Dictionary (6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)): "turnover" "n. ... 2. the aggregate of worker replacements in a given period in a given business or industry. 3. the ratio of the labour turnover to the average number of employees in a given period …"; and "labour" "n. 1. bodily toil for the sake of gain or economic production. 2. the workers or class of workers engaged in this. … 4. a work or task done or to be done …".
76 Together those words therefore describe the aggregate of the employer's employee replacements. The particular focus of that aggregation is then defined by the adjectives "ordinary" and "customary". The word "ordinary" means (Macquarie Dictionary): "adj. 1. such as is commonly met with; of the usual kind. … 3. customary; normal: for all ordinary purposes." The word "customary" means (Macquarie Dictionary): "adj. 1. according to or depending on custom; usual; habitual. 2. of or established by custom rather than law. 3. Law defined by long-continued practices: the customary service due from land in a manor." Those adjectives are expressed conjunctively in the Exception. Thus, together they mean that the aggregate of employee replacements (the turnover of labour) is for the employer of a kind that is both common, or usual (ordinary), and a matter of long-continued practice (customary).
77 So, to sum up, the Exception applies if a particular employer decides to terminate a particular employees' employment and to render that employee's job redundant in circumstances where the redundancy component of that decision is for that employer, with respect to its labour turnover, both common, or usual, and a matter of long-continued practice. In that confined set of circumstances, the employer concerned does not have to pay the employee concerned any redundancy pay. As I have already mentioned above, it is unnecessary, in this matter, to explore the interaction between the various exclusions in Division 11 Part 2-2 and this meaning of the Exception.
78 In this matter, the critical question therefore reduces to this: has Berkeley, as the employer of the affected employees, discharged its onus to show that its decision to terminate their employment and, at the same time, to render their jobs redundant was, for it, common or usual and a matter of long-continued practice? I should interpose to note that, because this question is entirely focused on Berkeley's decision to undertake the terminations and to make the jobs redundant and the circumstances in which it made that decision, any expectations the affected employees held about those matters are irrelevant. I therefore reject United Voice's contentions to the contrary.