C2014/6633, Transcript of Proceedings [2014] FWCTrans 666 (5 November 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050864-1

COMMISSIONER GREGORY

C2014/6633

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Ryans Freight Trust T/A Ryans Freighters
and
Mr Andrew Timms
(C2014/6633)





By Telephone AEDT

1.06PM, WEDNESDAY, 29 OCTOBER 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

Reserved for Decision

PN1

THE COMMISSIONER: Good afternoon everyone its Commissioner Gregory here.

PN2

MR A. TIMMS: How are you?

PN3

THE COMMISSIONER: Good thank you that’s, Mr Timms?

PN4

MR TIMMS: Yes, speaking.

PN5

THE COMMISSIONER: Good afternoon to you. I understand on behalf of the company we have, Mr Ryan.

PN6

MR G. RYAN: Yes.

PN7

THE COMMISSIONER: And Ms Duynhoven.

PN8

MS M. DUYNHOVEN: Yes.

PN9

THE COMMISSIONER: Just so that we’re clear this is an application that’s been made by the company effectively seeking to set aside the redundancy payments that would otherwise be due to Mr Timms. I understand on the basis that other acceptable employment has been obtained by Mr Timms. Am I correct in understanding that Mr Timms was employed by the company for just under two years?

PN10

MR TIMMS: Yes.

PN11

MS DUYNHOVEN: Yes.

PN12

THE COMMISSIONER: Yes, okay. Are the redundancy entitlements those that are set out in the National Employment Standards or is there some other scale of entitlements that Ryans applies?

PN13

MS DUYNHOVEN: The National Employment Standards.

PN14

THE COMMISSIONER: My understanding would be that with someone for less than two years employment, Mr Timms would otherwise have a redundancy payment entitlement to four weeks’ pay, is that correct?

PN15

MS DUYNHOVEN: Correct, yes.

PN16

THE COMMISSIONER: What I propose to do then, I’ve obviously read the submissions that you have provided. I would propose to allow the company to make any further submissions that they wish to at this point. I have some questions that I might want to follow up on then I would ask Mr Timms to say anything further that he wishes in response to the company’s application. Is everyone clear in terms of how we are going to proceed?

PN17

MR TIMMS: Yes.

PN18

MR RYAN: Yes.

PN19

THE COMMISSIONER: Ms Duynhoven are you speaking on behalf of the company?

PN20

MS DUYNHOVEN: Yes, it will be a combination of both Graham and I.

PN21

THE COMMISSIONER: Okay, fine, away you go.

PN22

MR RYAN: (indistinct) We offered Andrew a letter for the current job he was involved in was becoming redundant. He was offered two jobs that were on the shelf which he neglected to take. So he can go and work with Allen’s. Both jobs are still open and have never been cut off to Andrew. I suppose I just don’t understand why we’re doing this. Why the two jobs are on offer and he chose to go to Allens of his own free will.

PN23

THE COMMISSIONER: Can I just ask, Mr Ryan from what I’ve seen from the written material that you provided. Firstly am I correct in understanding that following the outsourcing of these local deliveries one option open to Mr Timms was to take on a job as a long distance driver continuing the work with your company, is that correct?

PN24

MR RYAN: That’s correct.

PN25

THE COMMISSIONER: In terms of the opportunity that became available at Allens, can you tell me was that a guaranteed opportunity that he had? Or was it simply that it was subject to him being interviewed by Allens and then making a decision as to when they would take him on? Can you just provide me with some more explanation about that situation?

PN26

MS DUYNHOVEN: With this one the staff initially we thought they were all going to be interviewed by Allens. Then Allens came in and they started working here and they instantly went, “No, that’s it all staff will come across.”

PN27

THE COMMISSIONER: So effectively the arrangement that you had with them was that they would just simply and presuming the people wanted to go and work for them, that they would just simply pick up all existing staff and they would become employees of that company.

PN28

MR RYAN: For those that chose to take that option.

PN29

THE COMMISSIONER: As part of all of this outsourcing of the business you’d obviously had discussions with Allens and as part of those discussions did you endeavour to ensure that they did employ all of your existing staff?

PN30

MR RYAN: Yes.

PN31

THE COMMISSIONER: Can you tell me what you did to ensure that was part of the arrangements that followed?

PN32

MR RYAN: I suppose there was nothing much in writing as such, Michelle.

PN33

MS DUYNHOVEN: I had numerous phone calls, sorry conversations with Richard, sorry this is Richard Allen. He just would wanted to know what the staff were like, you know who did what roles. If we were to take a handful of one of them which would we select. He was sort of sussing out what the staff were like and then and soon as he got him here he decided he needed to take everything that he could.

PN34

THE COMMISSIONER: Effectively he took, am I right in assuming that he employed all of the staff that wanted to go and work that wanted to continue to remain in those roles, all of them were taken on by the new contractor.

PN35

MS DUYNHOVEN: Correct.

PN36

THE COMMISSIONER: Did any staff elect to stay working for your company?

PN37

MS DUYHOVEN: We had just one person who decided to become the long haul driver, yes.

PN38

THE COMMISSIONER: So one person has effectively switched from doing local delivery work to doing long distance driving work?

PN39

MS DUYHOVEN: Yes.

PN40

THE COMMISSIONER: In terms of Mr Timms’s entitlements am I correct in assuming that when he finished with your company that you paid him out all of his outstanding annual leave entitlements.

PN41

MS DUYHOVEN: Yes we did.

PN42

THE COMMISSIONER: So he starts with Allens effectively as a new employee from day one with no annual leave entitlement.

PN43

MS DUYHOVEN: Correct, yes.

PN44

THE COMMISSIONER: What about something like his personal leave entitlements? Was that transferred over or did he lose whatever entitlement he had in that regard?

PN45

MS DUYHOVEN: He lost what he had.

PN46

THE COMMISSIONER: That’d be the same for, I guess there was no credit made for long service leave. He just starts with Allens from day one as a new employee with the pay out of annual leave.

PN47

MS DUYHOVEN: Correct.

PN48

THE COMMISSIONER: Is there anything further that you want to say at this point?

PN49

MR RYAN: No not at all. That’s it.

PN50

MS DUYHOVEN: No, I’m pretty good.

PN51

THE COMMISSIONER: Mr Timms, as I’ve said you’ve heard the nature of the application. This is an application by the company seeking to effectively set aside the four weeks redundancy pay that they would otherwise would have to pay on the basis that they have been able to obtain other acceptable employment for you. You’ve heard what they’ve had to say in regard to possible job opportunities either ongoing with Ryan’s or in the new position at Allens which I understand that you have taken up. What further would you like to say at this point?

PN52

MR TIMMS: Just basically when we got put off from Ryan’s I did speak to Graham and Graham did offer me a job doing long haul. Then I did say to Graham that that’s something I’d have to think about being the fact that at the moment I got young kids.

PN53

THE COMMISSIONER: Yes, it would mean being away from home on occasions obviously.

PN54

MR TIMMS: Exactly. Graham did say that he recommended me to Richard across to Allans. I don’t deny that one bit but with that we all actually did have go and sit in a room with Allans, like for a job interview to get the job and we all got put on like a six month trial which is mandatory anyway, as casual.

PN55

THE COMMISSIONER: So you’re currently employed as a casual employee?

PN56

MR TIMMS: Yes, for six months trial, probation. I’m just a little worried that like it’s pretty quiet there at Allen’s at the minute and I could get sent home. The works only four hours I could get sent home or they could ring up and say, “you know we got nothing for you today.” I’ve sort of lost that full time security.

PN57

THE COMMISSIONER: You were obviously working as a full time employee when you were employed by Ryans?

PN58

MR TIMMS: Yes.

PN59

THE COMMISSIONER: How many hours a week were you working on average? The 38 hour week or?

PN60

MR TIMMS: Yes.

PN61

THE COMMISSIONER: Now you’re employed as a casual employee, how many hours a week are you working now?

PN62

MR TIMMS: We’re doing 40 hours a week. That’s with two hours overtime.

PN63

THE COMMISSIONER: Are you receiving the same rate of pay that you received previously?

PN64

MR TIMMS: Yes.

PN65

THE COMMISSIONER: In all respects are your, leaving aside the six month probationary period that you’ve spoken about, are your pay and conditions the same in all respects as what they were when you were employed by Ryans?

PN66

MR TIMMS: Yes they are.

PN67

THE COMMISSIONER: It’s just you’ve been employed initially on a six month probationary period which you’re working through at the moment?

PN68

MR TIMMS: Yes.

PN69

THE COMMISSIONER: Is there anything more you want to say at this point?

PN70

MR TIMMS: No, not really.

PN71

THE COMMISSIONER: Thank you very much for that. Ms Duynhoven is there anything further you want to say on behalf of the company at this point in response to what you’ve just heard.

PN72

MR RYAN: I’d just like to add that. Andrew I did say to you, you know, I did recommend that you go because of family commitment and all the rest of it. I believe it would be a job sustainable for him in the future. But I did say to him however if it didn’t work out I’d be more than happy to have you back as a driver. Take the opportunity, if it all goes to muck come back and see us. We’ve always opportunities for drivers.

PN73

MR TIMMS: Appreciate that.

PN74

THE COMMISSIONER: I mean there’s no firm commitment but you’re simply saying if for whatever reason things don’t work out at Allens in the future you’d talk to Mr Timms about future possible reemployment opportunities?

PN75

MR RYAN: Yes for sure. Look, Andrew’s been a good employee there’s no bad blood, there’s nothing there but changes we made in the business is just about long term sustainability that sort of thing for the business going ahead.

PN76

THE COMMISSIONER: Is there anything more that the company wants to say at this point?

PN77

MS DUYNHOVEN: No, thank you.

PN78

THE COMMISSIONER: Mr Timms is there anything further that you want to say?

PN79

MR TIMMS: No, I’m all good thanks.

PN80

THE COMMISSIONER: What I’ll do at this point, I’ll just take some time to consider the submissions that you’ve made this afternoon and written materials that have been provided previously. Once I’ve made a decision you’ll both be notified of that outcome. Is that clear?

PN81

MR TIMMS: Yes, that’s clear.

PN82

THE COMMISSIONER: Thank you to you all for your participation this afternoon.

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