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2580 
, Transcript of Proceedings [2012] FWATrans 200 (29 February 2012)
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1032879-1
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2012/ 2580
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
VIP Electrical Construction Pty Ltd
and
Mr Brett Ryan
(C2012/ 2580 )
Electrical, Electronic and Communications Contracting Award 2010
(ODN AM2008/15)
[MA000025 Print PR986366]]
Adelaide
12.34PM, THURSDAY, 23 FEBRUARY 2012
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN ADELAIDE
PN1
THE SENIOR DEPUTY PRESIDENT: Good afternoon. I understand I've got Mr Fitzsimons representing VIP Electrical, is that right, Mr Fitzsimons?
PN2
MR FITZSIMONS: Yes, sir.
PN3
THE SENIOR DEPUTY PRESIDENT: And I understand that on the telephone I have Mr Ryan, is that right, Mr Ryan?
PN4
MR RYAN: Yes, that's correct.
PN5
THE SENIOR DEPUTY PRESIDENT: All right. Mr Ryan, because you're appearing by way of a telephone link, if at any point you cannot hear either myself or Mr Fitzsimons, then can I invite you to interrupt us. There is some construction work going on adjacent to the Court room and there is a bit of background noise. So please interrupt if at any point you cannot hear us. All right?
PN6
MR RYAN: Yes.
PN7
THE SENIOR DEPUTY PRESIDENT: All right, Mr Ryan?
PN8
MR RYAN: Yes.
PN9
THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Fitzsimons, whilst you're representing the employer, I am conscious that Mr Ryan, particularly, may not have a lot of background information about this matter. Can I outline my understanding of the position?
PN10
MR RYAN: Yes.
PN11
THE SENIOR DEPUTY PRESIDENT: My understanding is that VIP Electrical Constructions Proprietary Limited has sought an order that the amount of redundancy pay that would otherwise be due to Mr Ryan be reduced or reduced to nil. And that order is sought on the basis that VIP Electrical Construction Proprietary Limited assert that it obtained suitable alternative employment for Mr Ryan and that suitable alternative employment was with a organisation known as Leane Electrical, that Mr Ryan did not follow up on an employment offer made to him on - in early December and as a consequence Leane Electrical did not offer him ongoing employment.
PN12
I understand VIP Electrical to be saying that Mr Ryan was made redundant on - with effect from 21 December. Now, is that a fair summary of the employer position, Mr Fitzsimons?
PN13
MR FITZSIMONS: Yes, sir, it is.
PN14
THE SENIOR DEPUTY PRESIDENT: Right. Is it the case that VIP Electrical are saying that someone, presumably, Mr Robinson, as the managing director, actually contacted Mr Sims from Leane Electrical and sought that he be - that he consider employing Mr Ryan?
PN15
MR FITZSIMONS: That is true, sir. That - Mr Ryan was placed with Leane Electrical on 3 November on labour hire, whilst I think he was still being paid by VIP Electrical on the understanding that we had advised the workforce at a consultative meeting on 27 October of the decision to move of construction, and one of the opportunities that we sought was to place Mr Ryan with an organisation like Leane - he went there on labour hire for the first full week after the announcement and after a month with Leane's they saw - they liked what they saw, said, "Yes, we do have an ongoing role for you." But Mr Ryan asked for a couple of days to consider that offer, but he never following through on it.
PN16
THE SENIOR DEPUTY PRESIDENT: I see. Now, attached to the application, Mr Fitzsimons is - are a number of emails. I must say they don't help me an enormous amount. Are you saying that Mr Robinson actually had a telephone or face to face discussion with Mr Sims to arrange that labour hire employment?
PN17
MR FITZSIMONS: He certainly did, sir.
PN18
THE SENIOR DEPUTY PRESIDENT: And are you saying that he had a further discussion with Mr Sims where Mr Sims advised that he was offering him ongoing employment?
PN19
MR FITZSIMONS: That's right, sir. And in that email of the - dated 1 December, Mr Sims advised Mr Robinson that - he left a message with me to say he needs a couple of days to think about it, "it" being the employment contract, happy to talk about taking the apprentice, and that was the email that - we did not seek to get the precise details of the employment offer - that's something between Mr Ryan and Leane.
PN20
THE SENIOR DEPUTY PRESIDENT: And should I understand that if Mr Robinson was called to give evidence your submission to me is that his sworn evidence would replicate the advice you provided to me?
PN21
MR FITZSIMONS: It would, sir, yes.
PN22
THE SENIOR DEPUTY PRESIDENT: What is it that the employer is seeking? Is it seeking a reduction in the quantum of redundancy pay?
PN23
MR FITZSIMONS: We would - our understanding of the severance provisions is a means by which an employee - a redundant employee has some income to tide them over whilst they seek alternative employment. Our position is that because of the arrangements, the very pro active arrangement, that we made with Leane Electric that allowed for ongoing employment on comparable terms - essentially, Mr Ryan took off his VIP shirt, put on a Leane shirt, and nothing much else changes. So there is no requirement to make any severance payment.
PN24
THE SENIOR DEPUTY PRESIDENT: I see. How long had Mr Ryan been employed?
PN25
MR FITZSIMONS: He joined - three complete years, sir. He joined in September 2008, which I understand - I believe - (indistinct) is seven weeks redundancy.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes. So the employer is not seeking - sorry, let me rephrase that. Should I understand then that the employer says that Mr Ryan was given adequate notice of the termination or impending termination of his employment?
PN27
MR FITZSIMONS: He was given that notice on 12 December and paid - paid an amount of three weeks which is actually better than the National Employment Standard. We gave him an extra week at that stage plus paid out his annual leave and any RDOs that were available.
PN28
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, anything further, Mr Fitzsimons?
PN29
MR FITZSIMONS: No, sir. Just the apology that we needed to be here because we did seek advice from Civil Contractors and the National Electrical Contracting Association during November when we were planning this situation. But it was, sort of, was only in an informal - we put our position of - if we found someone a job does that waive the right to severance, and we got a very informal response. Did not get information about the need to make application for that until the Fair Work Ombudsman had a telephone interview, and that follows Mr Ryan's application for severance payment.
PN30
THE SENIOR DEPUTY PRESIDENT: Yes. Well, it may not be your last visit here in that you may have to provide evidence to support the contentions that you're making, but let's see how we go. All right.
PN31
MR FITZSIMONS: Thank you, sir.
PN32
THE SENIOR DEPUTY PRESIDENT: Now, Mr Ryan.
PN33
MR RYAN: Yes.
PN34
THE SENIOR DEPUTY PRESIDENT: You heard everything that Mr Fitzsimons and myself have said?
PN35
MR RYAN: Yes.
PN36
THE SENIOR DEPUTY PRESIDENT: What's your position in relation to this application?
PN37
MR RYAN: Well, basically - well, in the letter that I received from VIP giving me notice of termination - - -
PN38
THE SENIOR DEPUTY PRESIDENT: Yes. When was that letter dated, Mr Ryan?
PN39
MR RYAN: 12 December.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes.
PN41
MR RYAN: And my last date of employment was 21 December.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes.
PN43
MR RYAN: Now, I believe they have paid me incorrectly in regard to termination payment, holiday pay, et cetera. I'm not disputing anything there. Now, I'll just read a line from this letter, in one of the paragraphs:
PN44
PN45
Basically, I'm seeking clarification as the law regarding this concern, because, I mean, they've sought advice and Fair Work Australia is my attempt to seek advice.
PN46
THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't hear that last part of your statement. You mentioned Fair Work Australia but I didn't hear anything after that.
PN47
MR RYAN: Yes. I approached Fair Work Australia to receive advice on this issue. Like VIP have sought - obtained their advice and this is my attempt to get advice on this issue.
PN48
THE SENIOR DEPUTY PRESIDENT: Okay. Well, let me try to give you some information before I ask you some more questions.
PN49
MR RYAN: Right.
PN50
THE SENIOR DEPUTY PRESIDENT: Fair Work Australia is a body that arbitrates disputes, and it's got various powers under the legislation. One of those powers is the one that is being relied upon in this instance in that I have the capacity to say that VIP Electrical are not obligated to make redundancy payments to you because they found you suitable alternative employment; or alternatively, that they were unable to afford to do so. Now, I need to be satisfied as to those criteria before I can make that call.
PN51
There is another organisation that is commonly, if you like, intertwined with Fair Work Australia and it's the Fair Work Ombudsman's office.
PN52
MR RYAN: Yes, I have heard of that.
PN53
THE SENIOR DEPUTY PRESIDENT: Yes. That body handles the enforcement. So let's say for argument's sake that I was not inclined to make the order that is sought by VIP Electrical, then the Ombudsman might end up by pursuing VIP Electrical so as to recover redundancy payments that were due to you. I don't have any role in that regard because I have this very limited function to, in effect, adjudicate matters like this that are in dispute.
PN54
Now, all of that means that if I am satisfied that VIP Electrical obtained suitable alternate employment for you, then I can issue an order that says they don't have to pay you any redundancy pay. They're still obligated to pay you your other entitlements: there's your accrued annual leave and other payments that might be due to you including notice payments.
PN55
So I'm simply focused at this point in time on trying to establish what your position is in relation to that set of assertions from VIP Electrical the affect that Mr Robinson obtained suitable alternative employment for you and for reasons that are best known only to you, you did not follow up on that consequent employment offer. Does that help explain it simply enough for you?
PN56
MR RYAN: Yes. Now, David Sims did contact me and made me aware that they were (indistinct) to employ people - - -
PN57
THE SENIOR DEPUTY PRESIDENT: Okay. Can we just stop for a second, just go back into history a bit more. Do you agree or dispute that Mr Robinson contacted Mr Sims and arranged for you to undertake some labour hire work for Sims Electrical - for Leane Electrical?
PN58
MR RYAN: Yes.
PN59
THE SENIOR DEPUTY PRESIDENT: You argue with that, do you? You say that's not right?
PN60
MR RYAN: No, no, I was placed as labour hire for Leane Electrical - - -
PN61
THE SENIOR DEPUTY PRESIDENT: Okay.
PN62
MR RYAN: - - - but still employed by VIP Electrical.
PN63
THE SENIOR DEPUTY PRESIDENT: Okay then. All right. And do you agree that Mr Robinson contacted Mr Sims about the possibility of ongoing work?
PN64
MR RYAN: I believe he did, yes.
PN65
THE SENIOR DEPUTY PRESIDENT: All right. And did Mr Sims make you an offer of ongoing work?
PN66
MR RYAN: He made me an offer but over (indistinct) to employ extra staff.
PN67
THE SENIOR DEPUTY PRESIDENT: Yes.
PN68
MR RYAN: And then I considered whether I did want to work for Leane Electrical or not, and I decided that I did not want to. So I didn't go as far as actually having an interview with Leane Electrical.
PN69
THE SENIOR DEPUTY PRESIDENT: Yes. All right. Now, are you still - are you claiming your redundancy payments or what's your position in that regard now, given the information that I provided to you?
PN70
MR RYAN: I'm not fully aware of the law and how they apply it.
PN71
THE SENIOR DEPUTY PRESIDENT: Well, I had a go at explaining it, I'll have another go. The law establishes that redundancy payments and notice payments are due to employees.
PN72
MR RYAN: Yes.
PN73
THE SENIOR DEPUTY PRESIDENT: The law says the employer who makes someone redundant has to pay an amount of money depending on the number of completed years of service that that person has - - -
PN74
MR RYAN: Yes.
PN75
THE SENIOR DEPUTY PRESIDENT: - - - by way of redundancy. It also says that if the employer can establish to Fair Work Australia, that is to someone such as myself, that the employer obtained suitable alternative employment for that person that requirement could be reduced and possibly reduced to nil.
PN76
MR RYAN: Yes.
PN77
THE SENIOR DEPUTY PRESIDENT: Now, that's the issue that I'm trying to ascertain in terms of your view about that question.
PN78
MR RYAN: Well, when you say suitable, suitable for whom?
PN79
THE SENIOR DEPUTY PRESIDENT: Well - - -
PN80
MR RYAN: Is that a valid question?
PN81
THE SENIOR DEPUTY PRESIDENT: It's a very valid question because a lot of thought has been given to that issue, and once, again, I'll give you my best go at giving a simple answer to that. Suitable alternative employment is generally taken to be employment of a comparable - at a comparable salary, the utilising comparable skills within a comparable location. So that if, for example, you were working at, let's say Elizabeth, and the alternative employment was at Victor Harbour, that's not likely to be deemed to be suitable alternative employment. It's simply too far away.
PN82
MR RYAN: Right.
PN83
THE SENIOR DEPUTY PRESIDENT: If the offer that you received from Leane Electrical was for work to be done of a somewhat similar nature - it doesn't have to be the same, but somewhat similar nature to that that you were doing for VIP Electrical for similar hours and in a location that wasn't dramatically dissimilar, it may well be that that's sufficient to meet those requirements.
PN84
MR RYAN: Right.
PN85
THE SENIOR DEPUTY PRESIDENT: Does that help you?
PN86
MR RYAN: Yes.
PN87
THE SENIOR DEPUTY PRESIDENT: Now - - -
PN88
MR RYAN: - - - Leane's are another electrical contractor so the employment was of a similar nature.
PN89
THE SENIOR DEPUTY PRESIDENT: Yes.
PN90
MR RYAN: I was led to believe that my placement unit being out at Elizabeth way - - -
PN91
THE SENIOR DEPUTY PRESIDENT: Sorry, would have been out Elizabeth way, is that what you said?
PN92
MR RYAN: Yes. At the RAAF Base because they had a big contract coming up there. And that was one of the reasons why I decided to work for Leane Electrical.
PN93
THE SENIOR DEPUTY PRESIDENT: Now, when you were working for VIP Electrical, whereabouts were you working?
PN94
MR RYAN: Well, the nature of electrical contracting work tends to be wherever the work is within the metropolitan area. But most of my employment was in and around the city.
PN95
THE SENIOR DEPUTY PRESIDENT: In and around the city. Is that what you said?
PN96
MR RYAN: Yes.
PN97
THE SENIOR DEPUTY PRESIDENT: All right.
PN98
MR RYAN: You know, that's - most electrical contractors are all over the metropolitan, I guess.
PN99
THE SENIOR DEPUTY PRESIDENT: And can I put some words in your mouth to see whether I've understood what you're putting to me correctly. If I'm understanding you correctly, you're saying that with VIP Electrical, you were primarily doing work in and around the city. The work at Leane Electrical was going to be primarily based out at Salisbury at the RAAF Base.
PN100
MR RYAN: I believe that's what was going to happen because that's - they were seeking to employ extra staff for that job.
PN101
THE SENIOR DEPUTY PRESIDENT: So did - but did someone from Leane Electrical tell you this or was it just an estimate - your estimate of what was going to happen?
PN102
MR RYAN: That was my estimate of what was going to happen based on talking to various people in the industry and Leane Electrical. But like I said, I did not have a formal interview with David Sims in regards to employment.
PN103
THE SENIOR DEPUTY PRESIDENT: Now, why didn't you have a formal interview with Mr Sims, do you know that?
PN104
MR RYAN: Yes, because I decided I did not want to work for Leane Electrical, so there was no point in having a formal interview.
PN105
THE SENIOR DEPUTY PRESIDENT: This is where I'm struggling a little. Should I understand the reason that you decided that you didn't want to work for Sims (sic) Electrical was because you thought the work would have been based out at Salisbury or Elizabeth way, but you didn't know that for because you hadn't had the interview?
PN106
MR RYAN: Well, that was one of the reasons why I decided that I didn't want to work for Leane Electrical.
PN107
THE SENIOR DEPUTY PRESIDENT: And what were the other reasons?
PN108
MR RYAN: Well, basically - well, the other reasons - I don't wish to incriminate anybody, so to speak - - -
PN109
THE SENIOR DEPUTY PRESIDENT: That's all right.
PN110
MR RYAN: - - - some of the tradesmen from Leane Electrical that I was working with didn't have the highest opinion of the company, and their advice, "Don't (indistinct)
PN111
THE SENIOR DEPUTY PRESIDENT: Just bear with us for one moment. We'll try one more time. Yes, go on, Mr Ryan?
PN112
MR RYAN: Several of the guys that I was working with, guys from Leane Electrical - their advice or their opinion was that Leane Electrical weren't the best company to work for. So - - -
PN113
THE SENIOR DEPUTY PRESIDENT: I see.
PN114
MR RYAN: - - - allied with, you know, job location and people within the company not being very satisfied, I decided I didn't want to work for them.
PN115
THE SENIOR DEPUTY PRESIDENT: Right. All right. And were there any other reasons that you took into account?
PN116
MR RYAN: Basically, that's it.
PN117
THE SENIOR DEPUTY PRESIDENT: And do you agree that the money, that is, the wage was of a comparable value?
PN118
MR RYAN: Pardon?
PN119
THE SENIOR DEPUTY PRESIDENT: Do you agree that the wage would have been of a comparable value?
PN120
MR RYAN: Comparable, yes.
PN121
THE SENIOR DEPUTY PRESIDENT: All right. Now, I need some advice from you in this respect now, Mr Ryan. You've got two options: you can say to me that you do not oppose me making an order that would, in effect, eliminate any redundancy payment obligations on the part of VIP Electrical. So we'll call that option 1. Sorry, Mr Ryan, about the background noise. My associate has just gone out to talk to an electrician, I think.
PN122
Now, that's option 1. The option 2, if you can say to me that you still think you're entitled to receive those payments. Now, in that event I can't conclude your application today and I would need to list it for another occasion when I'd invite you to come in and give us some evidence, and I'll invite the employer to come in and give me some evidence, because so far people have simply been making assertions.
PN123
Now, I need to know what it is you want to do? I don't have another enough information before me to - for me to determine the matter in the event that you say, Mr Ryan, that you still think you're entitled to those three weeks redundancy pay?
PN124
MR RYAN: Well, like I said before, my knowledge of the law and how it is applied does need clarification. You know, if the law says I'm entitled to a redundancy, then - - -
PN125
THE SENIOR DEPUTY PRESIDENT: Well, I've gone through with you now a couple of times my best attempt to summarise the legal position.
PN126
MR RYAN: But - - -
PN127
THE SENIOR DEPUTY PRESIDENT: I guess - there is another option I could order the transcript of the proceedings and have that sent to you. That would then give you the opportunity to telephone or contact someone for advice. That advice could be provided by a Community Legal Centre, it could be provided by the Fair Work Australia Ombudsman's office, but I could do so on the basis that if I hadn't heard from you within, let's say, the next three weeks, then I would take it that your position was that you did not oppose me making an order in the terms sought by the employer.
PN128
MR RYAN: Right.
PN129
THE SENIOR DEPUTY PRESIDENT: And I proceed to make that order. If I do hear from you to the effect that you still dispute the employer position, then I would list the matter for a hearing and give you the opportunity to come in and give evidence. Are you happy with that approach as an alternative?
PN130
MR RYAN: Well, my first approach - well, via the Ombudsman.
PN131
THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Ryan, I'm having difficulty with your answering my question. I've laid out a possible approach that is designed to give you the opportunity to get some advice on this issue.
PN132
MR RYAN: Right. And - - -
PN133
THE SENIOR DEPUTY PRESIDENT: Are you happy with that strategy that I've outlined?
PN134
MR RYAN: Yes.
PN135
THE SENIOR DEPUTY PRESIDENT: All right.
PN136
MR RYAN: So basically I - - -
PN137
THE SENIOR DEPUTY PRESIDENT: Let me just go through it again. I will order the transcript so there'll be a typed record of what's gone on today.
PN138
MR RYAN: Right.
PN139
THE SENIOR DEPUTY PRESIDENT: And that will be sent to you.
PN140
MR RYAN: Right.
PN141
THE SENIOR DEPUTY PRESIDENT: Now, my recommendation to you is that you obtain some advice about your position given that you have informed me that you agree that Mr Robinson obtained the alternative work for you on an hourly hire basis with Leane Electrical, that is on a labour hire basis with Leane Electrical; that you agree with me that that work that you were doing at Leane Electrical was of a comparable or similar nature and brought with it a comparable or similar wage.
PN142
MR RYAN: Yes.
PN143
THE SENIOR DEPUTY PRESIDENT: You decided not to take up the offer of employment with Leane Electrical because you were concerned
about the extent to which the work may have involved work in the Salisbury or Elizabeth areas
- - -
PN144
MR RYAN: Yes.
PN145
THE SENIOR DEPUTY PRESIDENT: - - - and you were also concerned about whether or not Leane Electrical was the type of employer that you wanted to work for.
PN146
MR RYAN: Yes.
PN147
THE SENIOR DEPUTY PRESIDENT: Now, the issue that you need to get some advice on is whether - in simple terms - those reasons for not taking up the employment are such that they would most likely mean that your redundancy entitlements with VIP Electrical would be forfeited.
PN148
But I haven't made a decision on that yet and I can't that without hearing some more evidence.
PN149
MR RYAN: Yes.
PN150
THE SENIOR DEPUTY PRESIDENT: Now, if I have not heard anything from you within the next three weeks, then I would propose to make the order in the terms sought by the employer that would remove any redundancy entitlement. If I do hear from you within that three week period, then I'll re-list the matter and give you and Mr Robinson the opportunity to give me some evidence.
PN151
MR RYAN: Okay.
PN152
THE SENIOR DEPUTY PRESIDENT: All right?
PN153
MR RYAN: Yes.
PN154
THE SENIOR DEPUTY PRESIDENT: Mr Fitzsimons, are you happy with that approach?
PN155
MR FITZSIMONS: Yes. We will certainly be wanting to talk about location because Mr Ryan - - -
PN156
THE SENIOR DEPUTY PRESIDENT: I don't intend to get into that today.
PN157
MR FITZSIMONS: Okay, sir. Thank you.
PN158
THE SENIOR DEPUTY PRESIDENT: I've outlined the approach and we'll deal with any issues or argument if they come up on the next occasion.
PN159
MR FITZSIMONS: Thank you, sir.
PN160
THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Ryan, just bear with us for one moment.
PN161
MR RYAN: Yes.
PN162
THE SENIOR DEPUTY PRESIDENT: Mr Ryan, I'm going to adjourn these proceedings now, but I'm going to ask you to remain on the telephone line, and the reason for that is that my associate has had difficulty sending information to you and I need to get your address, I need you to give her your address so that she can send - - -
PN163
MR RYAN: Right.
PN164
THE SENIOR DEPUTY PRESIDENT: - - - you that transcript that I'm ordering. All right?
PN165
MR RYAN: Right.
PN166
THE SENIOR DEPUTY PRESIDENT: So please don't hang up until my associate has got that information from you.
PN167
MR RYAN: Okay.
PN168
THE SENIOR DEPUTY PRESIDENT: All right. I'll adjourn the matter - - -
PN169
MR RYAN: Thank you.
PN170
THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter on that basis.
<ADJOURNED INDEFINITELY [1.04PM]
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