[2012] FWA 8289

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Robert Aldred
v
J Hutchinson Pty Ltd
(U2012/6299)

COMMISSIONER LEWIN

MELBOURNE, 26 OCTOBER 2012

Genuine redundancy case - obligation to consult - redeployment - valid reason

Introduction

[1] On 20 March 2012 Mr Robert Aldred made an application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with J Hutchinson Pty Ltd (J Hutchinson) (the Respondent). Mr Aldred was employed by the Respondent from 23 June 2011 until 6 March 2012.

[2] The matter was the subject of conciliation on 5 April 2012 and did not settle. On 17 July 2012 the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy (the Objection) as follows:

[3] The matter was allocated to me on 25 July 2012 and heard on 6 August 2012. At the hearing on 6 August 2012 Mr Aldred was represented by the CFMEU and Mr Tracey, of Counsel, acted for J Hutchinson. At that hearing the CFMEU raised concerns that that the Respondent had not produced, in full, the information required by an Order for the production of documents for the purposes of the hearing, issued by Commissioner Jones on 24 July 2012. Specifically, the CFMEU submitted, the Respondent had not complied with item 3 of the Schedule attached to the Order which is set out below:

[4] The Respondent submitted that the information and records sought by the CFMEU was not available in the form of a “list” and in seeking a “list” the CFMEU was seeking the creation of a document as opposed to the production of a document. It was submitted by the Respondent that the power to require the creation of the “list” sought is not conferred upon the Tribunal by the Act and thus, to this extent, the Order was ineffective. I decided that the provisions of s.590(2) applied to the Order issued by Commissioner Jones. In my view, the substance of the information sought in the form of a list was information which falls within the terms, “or to provide any other information to FWA” as provided for in those provisions as set out in s.590(2)(c) which are shown below:

[5] At the hearing of 6 August 2012 I ordered, and the Respondent undertook to provide the information specified at item 3 of the Schedule to the Order of Commissioner Jones requiring the production of documents by close of business 7 August 2012. That information was produced accordingly on 6 August 2012 and served upon Mr Raoul Wainwright of the CFMEU, Mr Aldred’s representative, on the same day. The applicant’s representatives requested an adjournment to consider the material and prepare Mr Aldred’s case having regard to its contents. The adjournment was granted. The matter was then heard by me on 22 August 2012. The Applicant gave witness evidence on his own behalf. The Respondent called Mr Michael Stojkovic, Victorian Manager, and Mr Robert Mastwyk, Senior Projects Manager, to give witness evidence. I requested further written submissions from the parties at the conclusion of proceedings. The Applicant filed further written submissions on 29 August 2012. The Respondent filed further written submissions on 5 September 2012.

The termination

[6] J Hutchinson dismissed the Applicant for reasons of the redundancy of his position, on 6 March 2012. Mr Aldred submits that the termination of his employment was not a case of genuine redundancy within the meaning of s.389 of the Act as set out below:

[7] Mr Aldred was employed by the Respondent as a construction worker. At the time of the termination of Mr Aldred’s employment he was employed at what was referred to as the Docklands Project site. The evidence of the Respondent is that for reasons associated with the circumstances of that project the job Mr Aldred was performing was no longer required. While it is possibly true that there was work which Mr Aldred could have been employed upon at that site beyond the date on which his employment was terminated the evidence is not sufficient for me to find that it is more probable than not that such was the case.

[8] During the hearing on 22 August 2012 the possibility of such a finding, based on an adjournment of the hearing in order to enable the gathering of further evidence was raised by Mr Aldred’s representative. To further adjourn the hearing would have been based on the speculative possibility of probative evidence of that kind being discovered and presented to the Tribunal. This arose in light of the material filed by the Respondent on 6 August 2012 and the cross examination of the Respondent’s witnesses on 22 August 2012. In my judgement, Mr Aldred’s representatives had reasonable time between filing of the information required by the Order of Commissioner Jones and the hearing of 22 August 2012 to make enquiries to determine if any such evidence could be obtained and presented to the Tribunal. On what was before me no such enquiries had been relevantly made.

Jurisdictional Considerations

[9] On what is before me, I consider that the issues to be determined are, first, whether the Respondent complied with applicable consultation obligations in an enterprise agreement applicable to Mr Aldred’s employment and second if it would have been reasonable for Mr Aldred to be redeployed within the Respondent’s enterprise or an enterprise of an associated entity of the Respondent. This is because, on what is before me, the circumstances contemplated by s.389(1)(a) applied at the time of the termination of his employment. That is to say, the job Mr Aldred had been performing at the Docklands site was no longer required because of the operational requirements of the Respondent’s enterprise.

Consultation

[10] Mr Aldred’s employment is governed by the J Hutchinson Pty Ltd t/as Hutchinson Builders and the CFMEU Building and Construction Industry Enterprise Agreement 2008-2011 (the Agreement) which contains clauses in the following terms:

[11] The Respondent submits that no obligation to consult with Mr Aldred in relation to the termination of his employment as a result of the redundancy of his job at the Docklands site arises, under these or any other terms of the Agreement as follows:

[12] I reject this submission, in my view, clause 8 applied to the circumstances of Mr Aldred, at least, at the time the decision was taken that his job at the Docklands site was redundant. clause 8(f) makes it clear that termination of an employee’s employment is subject to the clause, particularly where the termination involved changes to the composition and size of the workforce on a larger project. There was no suggestion that the Docklands site was not such a project.

[13] Clause 20 does not “cover the field” as submitted. This formulation is misplaced in the context of an enterprise agreement or an award for reasons which follow.

[14] The deployment of the somewhat obscure concept to “cover the field” is too narrow and legally technical to give good reason to exclude any operative effect of clause 8 in the relevant context. The proper approach is to understand the consultation obligations under the relevant enterprise agreement to be those which the makers of the enterprise agreement intended them to be. The principle of interpretation of awards and enterprise agreements include those stated in the case of Kucks v CSR Ltd 4:

[15] In The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited 6 the Full Bench of Fair Work Australia observed that the principles stated above apply equally to enterprise agreements and awards.

[16] In my judgement, the makers of the Agreement did not comprehend that the obligation to consult would be determined by reference to arcane notions of legal principle derived from decisions of courts of law involving conflict between federal and state industrial laws, when required to determine whether a valid federal law covers a field which may be simultaneously the subject of a law made by a state legislature. To import notions of legal construction, developed for the purpose of determining questions of the constitutional validity and relevant application of conflicting federal and state laws, into the proper construction of the meaning of the relevant clauses of the applicable enterprise agreement in this matter is excessively legalistic and inappropriate to the task at hand.

[17] Rather, I think, a full and beneficial interpretation of any obligation arising under a term of the enterprise agreement to consult with an employee(s) should be afforded to the words of the Agreement wherever appearing, without artificial construction of some imaginary conflict between different terms of different clauses of an agreement, which may otherwise harmoniously operate in relation to their subject matter. There is no conflict between clause 8 and clause 20 of the Agreement. Both applied at the time of the decision, if not consideration, that Mr Aldred’s job at the Docklands site was no longer required to be performed by anyone. That decision was a matter which would affect the size and composition of the workforce on the Docklands Project and could and did lead to the termination of Mr Aldred’s employment.

[18] Nevertheless, I am satisfied on the evidence before me that the consultation obligations prescribed by clause 8 of the Agreement were substantially complied with by the Respondent. However the Respondent conceded that it did not comply with the consultation obligations prescribed in clause 8(c), insofar as those obligations require that for the purposes of discussions otherwise required by clause 8 the Respondent was required to provide an employee, such as Mr Aldred or a nominated representative, in writing, the following:

Redeployment

[19] The Respondent is a national company carrying out commercial, residential, institutional and government construction projects. Nationally the company employs over 1,100 employees and engages approximately 2,500 subcontractors. The company has a national turnover of $1.2 billion. 7 The administrative structure comprises of several divisions separated by region.8 Human resource functions within the company are dealt with autonomously in each division, including Victoria.9 Mr Aldred was employed in the Victorian division. On what is before me, I am satisfied that there was a vacancy or vacancies in the company’s operations in Queensland which Mr Aldred could have been engaged to fill. This information was not known to Mr Stojkovic or Mr Mastwyk during consideration of or when the decision was made that the job Mr Aldred was performing was no longer required to be performed by anyone, or at the time he was retrenched. This is because the enquiries they made about opportunities for redeployment were confined to the division of the Respondent for which they were responsible, in which there were no opportunities for redeployment.

[20] It was submitted on behalf of Mr Aldred that at the time of the termination of his employment, for reason of redundancy of the job he was doing at the Docklands site, positions for which he possessed suitable qualifications, skills or experience were available in divisions of the Respondent other than Victoria. Mr Aldred’s representative referred to the list of employees engaged by the Respondent, produced to the Tribunal in compliance with the Order issued by Commissioner Jones. It was submitted the information demonstrated that within 16 days of Mr Aldred being notified of the redundancy of his job 11 positions for which Mr Aldred held suitable qualifications, skills or experience were filled by the Respondent. 10 The Respondent conceded there were many opportunities available in Queensland in March of this year.11

[21] On 6 March 2012 a meeting took place between Mr Aldred and Mr Mastwyk. During the meeting Mr Aldred was informed that his position had been made redundant. He was not presented with any possibility of redeployment. In his witness statement Mr Aldred said he “asked [Mr Mastwyk] if there was any other job I could transfer to and he replied the he didn’t know” 12. Mr Aldred gave viva voce evidence that he asked “[i]s there anything I can do?”13 which, in the circumstances, was intended to convey if there was “any work, just something to do, just a job somewhere, I just wanted to work”.14 Mr Mastwyk gave evidence that such no enquiry was made by the Applicant at any time during the meeting.15 I accept Mr Aldred’s evidence.

As noted, Mr Mastwyk and Mr Stojkovic did not make enquiries about positions within other divisions of the Respondent for which Mr Aldred held suitable qualifications, skills or experience. In his statement Mr Stojkovic asserted it was not reasonable to consider redeployment interstate because the Victorian division is operationally distinct from other states and territories and there would be a “significant” cost involved in the redeployment. 16 It is notable that this evidence makes it clear that enquiries outside the Victorian division were effectively and substantially foreclosed by this consideration on the part of Mr Stojkovic and Mr Mastwyk. This, it seems to me, was the principal reason why enquiries were not made elsewhere, rather than anything to do with Mr Aldred and the consultation with him. Mr Stojkovic could not cite any instrument or contractual obligation demonstrating the Respondent was obliged to pay any costs involving redeployment or relocation of Mr Aldred.

[22] Mr Aldred gave evidence that he would have accepted a job with the Respondent in Queensland, would cover related costs at his own expense and this was clear to Mr Mastwyk. 17 Mr Stojkovic gave evidence that at the time of termination he was not aware of other positions available in other divisions of the Respondent or of Mr Aldred’s willingness to relocate at his own expense.18

[23] The question therefore becomes; would it have been reasonable for Mr Aldred to have been redeployed within that part of the Respondent’s enterprise which is carried on in Queensland, in all the relevant circumstances.

[24] In relation to the reasonableness or otherwise of the redeployment of Mr Aldred for the purposes of my consideration of the application in this matter the Respondent has drawn attention to a decision of a Full Bench of Fair Work Australia (FWA) in the matter of UES (Int’l) Pty Ltd v Harvey 19.

[25] In that matter a Mr Harvey, who was an employee of UES, had applied to the Tribunal for relief in relation to the termination of his employment. The matter was first heard by Commissioner Ryan and on appeal by the Full Bench. The Full Bench found that Mr Harvey’s position had been made redundant by UES and that it was not reasonable in all the circumstances to redeploy him in UES’ businesses. However, the Full Bench also found that UES had not complied with consultation obligations of the kind referred to in s.389(1)(b) of the Act and hence the termination of Mr Harvey’s employment was not a case of genuine redundancy within the meaning of s.389. Accordingly, Commissioner Ryan had jurisdiction to hear and determine Mr Harvey’s application.

[26] The following extract from the Full Bench’s decision sets out the relevant circumstances of the case for my purposes:

[27] After setting out the circumstances of the case the Full Bench determined that Commissioner Ryan had erred in his decision of Mr Harvey’s application under s.394 at paragraph 33 of their decision as follows:

The Full Bench quashed the decision of Commissioner Ryan.

[28] Consequently the Full Bench proceeded to determine Mr Harvey’s application having regard to the matters which s.387 of the Act requires be taken into account when doing so. Under the heading of “other matters” the Full Bench said as follows:

[29] In that matter UES had made enquiries about possible opportunities for redeployment and a potential position to which Mr Harvey may have been potentially redeployed was identified in Western Australia. At the time of the termination of his employment Mr Harvey was employed in Victoria. The evidence was that the position was not discussed with Mr Harvey because the opportunity to do so was foreclosed when Mr Harvey “stormed out” of a meeting at which it may have been discussed. 23

[30] Whether it would have been reasonable to redeploy an employee whose job has genuinely been made redundant will always depend upon the factual circumstances of an individual case.

[31] In my view, it would be an error to construe the decision in UES as a conclusion that in each and every case of redundancy it would not be reasonable for an employee to be redeployed either in an employer’s enterprise or in an associated entity of an employer, if the redeployment would involve employment in a position at a geographic distance from the place of the employee’s employment at the time the job the employee was performing becoming redundant. Each such case will require determination on its own facts and the criteria will always be reasonableness. This must be arrived at objectively by the application of sound judgement and good sense 24, by the Tribunal, as an exercise of a statutory function to determine a dispute about the reasonableness of such redeployment, in all the relevant circumstances, in order to apply the statutory provisions.

[32] In order to consider the proper application of s.389(2) it is informative to refer to the Fair Work Bill 2008. Paragraphs 1551 and 1552 and the Illustrative example shown in the Explanatory Memorandum are relevant and are set out below:

[33] The first observation which may usefully be made arises from the Illustrative example. The Explanatory Memorandum strongly implies that there will normally be a sequence which leads to the termination of an employee’s employment in the circumstances of a redundancy, which will be characterised as a genuine redundancy case for the purposes of the Tribunal’s jurisdictional boundaries.

[34] The second observation is that the sequence starts when a decision is made to make a job or jobs within an employer’s enterprise redundant. That decision having been made the employer determines if there are any opportunities to redeploy employees who otherwise would be retrenched.

[35] The third observation is that the employer will consult in accordance with any obligation in a modern award or enterprise agreement applicable to the employees and meet those obligations prior to terminating the employment of an employee who is to be retrenched as a result of a genuine redundancy.

[36] The clear implication I think is that whether or not redeployment will be possible is something primarily, but not exclusively, within the purview of the employer in respect of which it is expected to act if redeployment is possible and would be reasonable in all the relevant circumstances.

[37] To suppose a responsibility to identify any reasonable redeployment opportunities or to impose an onus upon an employee to initiate the identification and determination what the employee would accept as being a reasonable redeployment opportunity is not appropriate. Employees may put proposals for redeployment in the consultation process. They may not. They may not have the relevant information which would enable them to do so. It is straightforward, I think, to conclude that the immediately available information and knowledge of the employer in most cases will be more extensive and comprehensive. So too will the ability of the employer to enquire into and obtain information about redeployment within the enterprise of the employer or within an associated entity.

[38] Even if there are no consultation obligations the requirement for a redundancy case to fall within the jurisdictional exclusion of s.389, the requirement that it would not be reasonable in all the circumstances to redeploy an employee whose job is redundant, within the employer’s enterprise or an associated entity, remains as an independent and determinative condition of that exclusion. In that case, absent any consultation, in my view, the employer should satisfy itself that it would not be reasonable to redeploy a redundant employee before terminating the relevant employment.

[39] It seems to me that simply because an employee does not expressly raise the possibility of redeployment to another position at some different or distinct location does not mean that it will not be reasonable to redeploy such an employee to that location. Rather, in my view, the question of what will constitute a redeployment which would be reasonable in all the circumstances will be more complex and entirely dependent on the particular factual circumstances or each case.

[40] For example, if a position were identified for which an employee had suitable qualifications or experiences at a distant location it will not be reasonable to redeploy the employee if the employee does not wish to be so redeployed or insists upon some conditional terms of such redeployment which are inherently unreasonable.

[41] The judgement by the Tribunal of whether redeployment will be reasonable in all the circumstances of a particular case must be arrived at objectively on the basis of the evidence before it. I reject the suggestion inherent in the evidence and submissions of the Respondent that redeployment to a position for which Mr Aldred had suitable qualifications or experience in Queensland would be unreasonable because Mr Aldred did not expressly initiate a proposal of the kind or expressly refer in the consultation process to his willingness to move to Queensland or any other location.

[42] In the case of UES the reasonableness or otherwise of the redeployment of Mr Harvey was never established prior to the termination of Mr Harvey’s employment. UES had no idea of Mr Harvey’s willingness or otherwise to accept the position or relocation from Victoria to Western Australia, due to his storming out of the meeting at which it might have been discussed.

[43] The facts in Mr Aldred’s case however are different, unlike the actions of UES the enquiries within the Respondent were restricted to the Victorian Division. I consider it necessary to make an intermediate finding of whether or not that was reasonable in all the circumstances of the case.

[44] Having regard to the size of the employer, the nature of the work performed by its employees and the national character of its business, I judge that it was not unreasonable in the circumstances to make enquiries more broadly in the circumstances of Mr Aldred’s case. Rather, I consider it would have been reasonable to do so. 27 I am fortified in this conclusion by my consideration of what is expressly manifest as the condition of the jurisdictional exclusion provided by s.389. The words in the employer’s enterprise or in an associated entity should not be read down. In my view, those words should be given full and beneficial meaning. To confine the consideration to a particular geographic zone or division of an employer’s enterprise or those of associated entities, in my view, would unjustifiably limit the words used in the statute which encompass the whole of an employer’s enterprise and the whole of any associated entity.

[45] Moreover, had such enquiries been made, perhaps by an email message or telephone enquiries to the other Divisions within the Respondent’s enterprise, a position or positions for which Mr Aldred had suitable qualifications or experience and to which he could have been redeployed would more probably than not have been identified in Queensland.

[46] Given the size and scale of the Respondent’s enterprise I find it impossible to conclude that the administrative burden of such enquiries could be described as unreasonable. On the contrary, having regard to those circumstances I consider the making of such enquiries to be unburdonsome. On my observation of the evidence and the executive employees who gave evidence for the company, I am satisfied that the Respondent’s enterprise is characterised by a high level of administrative organisation. I therefore further conclude that the identification of any vacancy throughout the Respondent’s enterprise would have been executed with a commensurate level of accuracy, efficiency and expedition. I find that had those enquiries been made it is more probable than not that redeployment opportunities for which Mr Aldred had suitable qualification and experience would have been identified, which Mr Aldred would have accepted at his own cost.

[47] For all of the above reasons I consider redeployment of Mr Aldred within the Respondent’s enterprise would have been reasonable in all the circumstances. Accordingly, Mr Aldred’s application is not excluded by the operation of s.389 and must be considered. Moreover, the Respondent did not fully comply with the consultation obligations prescribed by clause 8 of the Agreement. The Respondent’s Objection is therefore dismissed.

[48] I now proceed to deal with and give consideration to Mr Aldred’s application under s.387, the terms of which are set out below:

Valid reason

[49] For the termination of an employee’s employment to be for a valid reason the reason will be sound, defensible and well founded. 28 This poses a particular consideration in the circumstances of this case which can be illustrated by a hypothetical example.

[50] If the Respondent was constructing another building in the City of Melbourne and required an employee to perform duties for which Mr Aldred had suitable qualifications or experience at the time the decision was made that the job Mr Aldred was doing at the Docklands site was no longer required to be performed by anyone, would there have been a valid reason for the termination of Mr Aldred’s employment, if he had been ready, willing and able to be redeployed to that job in accordance with his contact of employment?

[51] In the absence of some other consideration I think not, in my view, the clear intention and public policy evidenced by the Act is that where redeployment of a redundant employee would be reasonable, in all the relevant circumstances, dismissal will be questionable. That is to say, not well founded. In my objective judgement, absent some compelling alternative consideration which would constitute a sound reason for the termination of Mr Aldred’s employment in the hypothetical circumstance above there would not be a valid reason for termination because of the reasonableness of redeployment.

[52] It follows then that one must consider any matter which would give rise to a conclusion that redeployment to a vacant position in Queensland for which Mr Aldred had suitable qualifications or experience would not be sound, defensible and well founded.

[53] In this respect, the Respondent has made submissions in relation to the proper approach to the consideration of the issue of redeployment under s.387. It is appropriate to set out and extract from the submissions filed by the Respondent:

[54] I am not convinced that the validity of the reason for the termination of Mr Aldred’s employment should be considered without regard to my finding that it would have been reasonable in all the circumstances to redeploy Mr Aldred to a position for which he had suitable qualifications or experience in Queensland.

[55] Having regard to the statutory context in which an application made under s.394 of the Act will be excluded from the Tribunal’s jurisdiction as a genuine redundancy case I find it difficult to consider that, where it would have been reasonable in all the circumstances to redeploy a redundant employee, this is a consideration which should not be taken into account under any of the provisions of s.387, most particularly under s.387(a) or (h).

[56] I am not satisfied that there was a valid reason for the termination of Mr Aldred’s employment because I consider that it would have been reasonable to redeploy him to a vacant position in Queensland for which he had suitable qualifications and/or experience. There was no impediment to reasonable enquiries being made by the Respondent and no cost of redeployment was established in the evidence, nor is there any evidence that Mr Aldred would be been unwilling to do so. Had Mr Aldred been advised of this possibility during conciliation I am satisfied he would have sought that redeployment. Moreover, I accept Mr Aldred’s evidence that he would have done so at his own cost. Interstate transfers in the Australian labour market of the 21st century are not unique or unusual rather, they are now notorious.

Notification

[57] Mr Aldred was notified of the reason for the termination of his employment

Opportunity to respond

[58] Mr Aldred was given an opportunity to respond to the reason for the termination of his employment. Relevantly, Mr Aldred, was greatly disturbed by the termination of his employment and asked “[i]s there anything I can do?” 30

Support person

[59] There was no unreasonable refusal of Mr Aldred having a support person to assist at discussions relating to dismissal.

Performance

[60] The termination of Mr Aldred’s employment did not relate to unsatisfactory performance.

Size of the employer

[61] The size of the Respondent had no apparent impact upon the procedures followed in effecting the dismissal.

Human resource management specialists

[62] On the evidence an absence of human resource management and specialists does not seem to have had any impact on the procedures followed in effecting the termination of Mr Aldred’s employment. However, one might speculate that the relevant expertise might have lead to a more thorough approach to the question of redeployment. However, the Respondent is not a small or, for that matter, a medium sized employer. In my judgement the Respondent is properly characterised as a large employer.

Other relevant matters

[63] If I am wrong in my conclusion that the reasonableness of redeploying Mr Aldred to a position in Queensland is relevant to whether or not there was a valid reason for the termination of Mr Aldred’s employment I consider that nevertheless that matter is a relevant consideration under s.387(h).

[64] The failure of the Respondent to comply with clause 8(c) in the Agreement is relevant, however, in the circumstances where the provisions of clause 8 have been substantially complied with I consider that matter of limited weight.

[65] I am unable to identify any other relevant consideration in the evidence and submissions than those set out above.

Harsh, unjust or unreasonable

[66] I have decided that the termination of Mr Aldred’s employment was harsh, unjust and unreasonable taking into account all of the matters referred to above. The effect of the termination of Mr Aldred’s employment was harsh because of the effects on his personal circumstances which are addressed in his evidence. The termination was unreasonable because it would have been reasonable in all the circumstances of the case to redeploy Mr Aldred to a position for which he had suitable qualifications and experience in the Respondent’s enterprise. There was therefore no valid reason for the termination of Mr Aldred’s employment. The termination was unjust because if the employer had made reasonable enquiries within its enterprise vacant positions would have been identified in Queensland for which Mr Aldred had suitable qualifications and experience and offered to him during the relevant consultation. Such an administrative procedure would have been just. To artificially limit enquiries concerning redeployment opportunities within the Respondent’s enterprise to the Victorian division was inherently unjust, having regard to the nature of the employer’s enterprise as a large national construction business.

Remedy

[67] Having determined that the termination of Mr Aldred’s employment was harsh, unjust and unreasonable, I turn to consider remedy. The relevant statutory provisions require that I first consider whether reinstatement is appropriate. This the remedy sought by the Mr Aldred. The relevant statutory provisions are set out below:

[68] For reinstatement to be appropriate in the circumstances of this case I would need to be satisfied that there exists a position to which Mr Aldred could reasonable be reinstated. For reasons which should be clear from what is set out above the position Mr Aldred was employed in immediately before he was dismissed by the Respondent no longer exists. Accordingly, an order or reinstatement to that position would not be appropriate.

[69] In my judgement, it would not be appropriate to make an order reinstating Mr Aldred under the provisions of s.391(1)(b) unless there exists or will exist in a reasonable time another position to which Mr Aldred could be appointed on terms and conditions no less favourable than those on which Mr Aldred was employed immediately prior to his dismissal.

[70] On what is before me, I am unable to be satisfied that such a position exists at the time of this decision. Accordingly, in order to determine whether reinstatement is appropriate I will hear the parties on this subject.

[71] A date for hearing will be fixed having regard to the convenience of the parties and a notice of listing issued.

Observation

[72] Independently of my reasoning and conclusions set out above it may be observed that there is improved flexibility in the Australian labour market.

[73] In a speech to Financial Services Institute of Australasia Deputy Governor Phillip Lowe, of the Reserve Bank of Australia, made a speech about the subject of labour mobility and structural change in the Australian labour market:

COMMISSIONER

Appearances:

Mr R. Wainwright with Ms K. Marshall of the CFMEU for Mr. Robert Aldred

Mr J. Tracey of Counsel for J Hutchinson Pty Ltd

Hearing details:

2012.

Melbourne:

August 6, 22.

 1   Form F4, filed 17 July 2012.

 2   Exhibit A5; AE873655.

 3   Exhibit R1.

 4   (1996) 66 IR 182.

 5   (1996) 66 IR 182 at 184.

 6   [2010] FWAFB 4801 at [15].

 7   Exhibit A1, Attachment B at p.7.

 8   Exhibit R2.

 9   Transcript in matter U2012/6299, 22 August 2012, PN623–625.

 10   Transcript in matter U2012/6299, 22 August 2012, PN988–999.

 11   Transcript in matter U2012/6299, 22 August 2012, PN713.

 12   Exhibit A4.

 13   Transcript in matter U2012/6299, 22 August 2012, PN358–359.

 14   Transcript in matter U2012/6299, 22 August 2012, PN358–359.

 15   Transcript in matter U2012/6299, 22 August 2012, PN868–869.

 16   Exhibit R2.

 17   Transcript in matter U2012/6299, 22 August 2012, PN381–383.

 18   Transcript in matter U2012/6299, 22 August 2012, PN714–715.

 19   [2012] FWAFB 5241.

 20   UES (Int’l) Pty Ltd v Leevan Harvey, [2012] FWAFB 5241 at [31]–[32].

 21   Ibid at [33].

 22   Ibid at [47].

 23   Transcript in U2011/13024 at PN675-678 and 726-730.

 24   The Macquarie Concise Dictionary (2nd ed, 1988), meaning of “reasonable”, p. 822.

 25  Explanatory Memorandum, Fair Work Bill 2008, paras 1551 and 1552 on p. 247.

 26   Explanatory Memorandum, Fair Work Bill 2008, paras 1551 and 1552 on p. 247.

 27   See David Cameron v Transfield Services (Aus) Pty Ltd [2012] FWA 3799.

 28   Selvachandaran v Peteron Plastics Pty Ltd (1996) 62 IR 371.

 29   Respondent’s further submissions, filed 5 September 2012.

 30   Transcript in matter U2012/6299, 22 August 2012, PN358–359.

 31   Lowe, P., Deputy Governor, Reserve Bank of Australia, ‘Labour Market, Structural Change and Recent Economic Developments’, Speech to the Financial Services Institute of Australasia, Hobart, 9 October 2012.

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