[2011] FWA 6872

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

Mrs Xiao (Jade) Wang

Mrs Lan (Libby) Xiu

Mrs Min Li

Mrs Brenda Leung

Mr You Bin (Peter) Yang


Specialty Fashion Group Ltd



Termination of employment - whether termination a genuine redundancy - whether employer had an obligation to consult - whether consultation obligations met - Fair Work Act 2009 - ss 394, 387, 389.


[1] This decision concerns applications for an unfair dismissal remedy by Mrs X. Wang, Mrs L. Xiu, Mrs M. Li, Mrs B. Leung and Mr Y. B. Yang concerning the termination of their employment by Specialty Fashion Group Ltd (SFG). The applications are made under s 394 of the Fair Work Act 2009 (the Act).

[2] At the hearing of the matter on 5 and 6 October 2011, Mr C. Indrele with Mr A. Koleda represented Mrs Wang, Mrs Xiu, Mrs Li and Mrs Leung, Ms K. Balendra of counsel with Ms L. Tchoulak represented Mr Yang and Ms S. Bingham of counsel with Ms J.Duff represented SFG.

[3] SFG contends that the terminations of employment were not unfair because the terminations were the result of genuine redundancies. Pursuant to s 385 of the Act a person is not unfairly dismissed if the dismissal is a genuine redundancy, as defined in s 389. Fair Work Australia is required to determine this question before considering the merits of the dismissal: s 396. The hearing of the matters on 5 and 6 October concerned the initial issue of whether the terminations of employment were genuine redundancies.


[4] The key factual matters relevant to the determination of this preliminary question are not in dispute.

[5] SFG is a publically listed company involved in the design, procurement, marketing and sale of women’s apparel including the operation of Millers, Crossroads, Katies, City Chic, and La Senza branded stores. SFG was affected by adverse retail trading trends in the financial year 2010-2011. From February 2011 its Executive Team began a process of identifying the causes of the profit decrease. Over subsequent months each of its operational divisions considered potential cost efficiencies that could be implemented.

[6] From approximately mid-May 2011 the management of the Design and Production Team began assessing its budget, cost efficiencies and overall restructure of its team. On approximately 1 June 2011 a definite decision was made to restructure the Design and Production Team. This involved the achievement of cost efficiencies by moving work closer to the sources of product and thereby reducing the number of roles based in Australia. More post production work was intended to be carried out in China, Bangladesh, Cambodia and India.

[7] On 1 June 2011 representatives of the Human Resources Department Ms Moura and Mr Swain met with the General Manager of Operations Ms Clough and the then head of Design and Production Ms O’Brien. Of the 72 employees in the Design and Production team, 21 roles were identified as excess to requirements. The Human Resource representatives advised Ms Clough that an objective assessment would need to be conducted to determine which employees would be selected for redundancy based on the ongoing requirements of the department.

[8] Ms Clough and Ms O’Brien then identified the experience required for the ongoing Merchandiser, Quality Control and On Road Quality Control roles. These requirements became the selection criteria to determine which employees would be retained.

[9] On or about 8 June 2011 the four management representatives met again. Ms Clough and Ms O’Brien advised that they had assessed the employees against the selection criteria and identified 21 employees for redundancy.

[10] Further meetings were held between the four management representatives between 9 and 17 June. At those meetings a communication strategy was developed and dates were decided for informing employees and providing appropriate assistance to them. It was decided to schedule a series of meetings on 23 June 2011 which was to include an announcement by SFG CEO Gary Perlstein at approximately 9.30am on that day.

[11] On approximately 10 June 2011 Ms Moura and Mr Swain met to consider whether alternative roles existed for the surplus employees. They considered the selected employees against the current SFG vacancy list and known planned new roles. No alternative roles were identified for the applicants in this matter.

[12] At 9.30am on 23 June Mr Perlstein met with all Production and Design team members and advised them that the Design and Production team was to be restructured and as a result 21 employees would be made redundant with immediate effect. He read from an announcement which stated:

[13] From 10.00am on that day Human Resources and Operational management employees of SFG met individually with employees to inform them of the situation and in the case of 21 of the employees that their positions were made redundant. For those made redundant a standard script was used which stated as follows:

[14] More detailed evidence was given by the applicants and SFG witnesses about the content of these meetings. It is not necessary that I summarise this evidence.

Genuine Redundancy

[15] As noted above a dismissal that is a case of genuine redundancy is not an unfair dismissal: s 385. The meaning of the term “genuine redundancy” is dealt with in s 389 which provides:

[16] In order to find that a dismissal is a case of genuine redundancy this definition requires a finding that both elements of s 389(1) are present and that the circumstances described in s 389(2) do not apply. The main issues which arise in this matter are whether the employer complied with an obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy and whether it would have been reasonable to redeploy the applicants within the SFG enterprise. Some more minor questions also arise in relation to s 389(1)(a).


[17] A consideration of this requirement first involves the question whether a relevant obligation to consult existed and secondly whether the obligation was complied with.

[18] It is common ground that no enterprise agreement applies to the employees in question. It is also common ground that if any award applies the standard award consultation clause applies to the employment and the terminations in question.

[19] SFG submits that the employees are award free because their work does not fall within the classifications of the General Retail Industry Award 2010 3 (the General Retail Award), the Textile, Clothing, Footwear and Associated Industries Award 20104 (the TCF Award) or the Clerks (Private Sector) Award 20105even though SFG does operate within these industries as defined in the former two awards, and the latter award is a vocational award applying to all private sector clerical employees not otherwise covered by an industry award.

[20] The applicants were variously employed as Merchandiser (Mr Yang) Merchandise Controller (Ms Wang), Senior Merchandiser (Ms Xiu), Quality Controller (Ms Leung), and On-road Quality Control Inspector (Ms Li). They perform their duties away from retail establishments which sell clothing to the general public. Position descriptions were submitted with respect to these roles.

[21] SFG is fundamentally a retail industry employer and the vast majority of its 4,700 employees are engaged in that sector. The General Retail Award applies to SFG in relation to classifications of work described in the award. The first four classification definitions are confined to employees at retail establishments. Higher classifications apply to employees who perform their work in connection with a retail establishment. I am not satisfied that any of these classifications apply to the applicants in this matter.

[22] The TCF Award at clause 3 contains very broadly defined definitions of the industries it covers. The clothing industry is defined as follows:

[23] In my view SFG is correct to concede that it falls within this definition - primarily because of the work of the Design and Production department.

[24] The classifications are expressed as generic skill levels. They include the following:

consult/liaise with relevant personnel;
contribute to product development or production planning; and/or
liaise with clients/customers, internal or external;

make contributions in the diagnosis of quality variations; and/or
make or recommend adjustments to maintain quality standards;

allocate and determine work priorities;
inspect and ensure the quality of work undertaken by employees;
implement and monitor occupational health and safety policies and procedures;
ensure labour, materials and equipment are available and used efficiently and, where appropriate, properly maintained;
prepare and maintain records and incident reports; and/or
exercise judgment and provide advice on matters requiring the application of the employee’s skill and knowledge;

exercise computer skills within the scope of their work;
assist with on-the-job training in combination with supervisors/trainers; and/or
provide reports and feedback to workplace meetings.”

[25] Although these classification definitions appear to be drafted primarily with manufacturing operations in mind I do not believe that they are confined to that environment, particularly in view of the expansive definition of the clothing industry. By such a drafting technique and the significance of the definitions in the determination of coverage of the award it is quite difficult to determine who the award applies to. As a general approach I do not believe the words in the definitions should be read down. I am satisfied that each of the employees concerned in these applications fall within the scope of these classification definitions.

[26] Therefore the TCF Award applies to their employment and SFG is bound by the consultation clause which provides:

[27] As I have noted, this is a standard award clause. In relation to such a clause I have previously stated: 6

[28] In this case a definite decision to make 21 redundancies in the Design and Production department was made on or about 1 June. Representatives of management then met amongst themselves to select the employees to be made redundant. They then planned an announcement to the workforce and made the announcement on 23 June. On that day they individually notified each of the redundant employees that they were redundant effective that day.

[29] SFG contends that the “one on one” discussions with the employees were an opportunity for employees to raise selection issues and are properly viewed as an adequate consultation process. I reject that submission. The employees were told of the decisions without any invitation for matters relevant to the decision to be raised so that they could be considered by SFG. There was no indication of an opportunity for input or the SFG’s open mind on issues such as selection, redeployment, payments and alternatives to redundancy.

[30] It may be that consultation was unlikely to alter the situation, but that is not the question I need to consider. The definition of genuine redundancy only applies if SFG has complied with its consultation obligations. On the evidence before me I am unable to conclude that it has.

[31] It follows that this element of the definition of genuine redundancy is not satisfied and that is sufficient to find that the terminations are not a case of genuine redundancy as defined. As other matters argued before me may be relevant to subsequent proceedings and are unnecessary to determine at this preliminary stage I believe that it is preferable that I do not deal with those matters.


[32] For the above reasons I find that the terminations are not a case of genuine redundancy and the application cannot be determined on that basis. It will be necessary to relist the matter to hear further evidence and submissions on whether the terminations are harsh, unjust or unreasonable.



C. Indrele for Mrs Wang, Mrs Xiu, Mrs Li and Mrs Leung

K. Balendra of counsel with L Thcoulak for Mr Yang

S. Bingham of counsel with J. Duff for Specialty Fashion Group Ltd

Hearing details:

October, 5, 6

 1   Attachment PS8 to exhibit B1

 2   Attachment PS9 to exhibit B1

 3   MA000004

 4   MA000017

 5   MA000002

 6   Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239

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