Unilever Australia Trading Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2018] FWCFB 4463, (C2018/1367). Full Bench: Catanariti, VP; Colman, DP, Wilson, C. 30 July 2018.

 

This is a precedent setting full bench decision of the Fair Work Commission, which has categorically found that casual and seasonal employment does not count towards redundancy pay. This decision does not count where an employer, at it its own volition, has a written policy providing that such service shall be included when calculating redundancy pay.

 

The main statements to consider in the decisions are:

 

“Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument.

 

And:

 

“…casual and seasonal employees would not ordinarily be entitled to payment of redundancy benefits anyway. The employer could simply not reengage casual employees; there is no need to make them redundant. The position is similar in relation to seasonal employees; ‘redundancy’ occurring at the end of the season would simply mean that the employer would not reengage the person for the following season…”

 

Redundancy: “Acceptable employment” explained.

The Trustee for Altman Unit Trust No 1 T/A Southgate Holden. [2018] FWC 3542 (C2018/2603). Hampton, C. 19 July 2018.

 

This matter related to an employer seeking to have redundancy pay set aside because it had offered alternate employment to the employee (Mr Klemm) wishing to receive redundancy pay.

 

Klemm was concerned about the sales aspect of the new position, Southgate Holden stated that it had offered him training and advised that his sales targets would be reviewed after a period of 6 months. It submits that this reinforced the acceptable nature of the offer of alternate employment. Further, it contends that Mr Klemm could have earned commission on sales in the new role and this was potentially additional remuneration that was designed to encourage Mr Klemm to take up, and succeed in, the new role.

 

The Commissioner stating:

 

“The critical issue here is whether the alternative position was acceptable.

 

“What constitutes “acceptable alternative employment” is a matter to be determined…on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

 

“Yet, the use of the qualification ‘acceptable’ is a clear indication that it is not any employment which complies but that which meets the relevant standard…including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”

 

“It is also clear that acceptable employment does not mean identical employment; however, it has been held by the Commission that:

 

“…the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.

 

“Further, employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.”

 

The Commissioner considered the position description of Mr Klemm’s current role in comparison with the new role. The “sales” component was the outstanding item, which the Commissioner ultimately found that the employment offered was “not suitable”.

 

Of course, this course of action is only need be considered where the employee’s employment comes to an end and alternate employment is found to the satisfaction of the employee, who would otherwise have been made redundant.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.