Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

s.739 - Application to deal with a dispute

Application to vary redundancy pay for other employment.

[1] Serco Sodexo Defence Services Pty Ltd (SSDS) has made a series of applications to the Fair Work Commission under Section 120 and Section 739 of the Fair Work Act 2009 (Cth) (the Act) seeking to reduce redundancy pay to some of its employees because it has obtained other acceptable alternative employment for those employees.

[2] SSDS provides a range of services including security, cleaning, hospitality and fire services to the Commonwealth Government (Department of Defence) (Defence) pursuant to six different contracts. 1 Five of the six contracts went up for tender in late 2012 (Defence Contracts) and SSDS was not reappointed by Defence to service any of those Defence Contracts upon their expiry.

[3] A number of different incoming contractors have been appointed by Defence to service the Defence Contracts after the relevant contract end date. As a result of these arrangements, the employment of the SSDS employees who work on the Defence Contracts will be terminated on the grounds of redundancy on the relevant contract end date. The Northern Territory/ Kimberley Garrison Support Services Contract (NTK contract) ended on 30 September 2014 and therefore the disputes in respect to the NTK contract are the first to be determined.

[4] The Employees’ rights to redundancy pay are governed by: (a) Sections 119 and 120 of the Act; and (b) the terms of the enterprise agreement that applies to them. In the case of the Employees who work on the NTK contract, the relevant enterprise agreements are the Serco Sodexo Defence Services Pty Ltd Garrison Support Northern Territory/Kimberley Collective Agreement 2010 (NT Enterprise Agreement) and the Serco Sodexo Defence Services Pty Ltd National Range Services Enterprise Agreement 2010 (National Range Services Enterprise Agreement).

[5] The Incoming Contractors for the NTK Contract are Transfield Services Ltd (Transfield) and Wilson Security Pty Ltd (Wilson).

[6] SSDS did not provide evidence of particular employees in respect to whom it had obtained employment with the incoming contractors. SSDS had no knowledge about which of its employees have obtained employment with Wilson or Transfield. SSDS also had no knowledge of which employees had applied for jobs and which employees received offers of employment but rejected them. Wilson provided information during the proceedings that approximately 91 SSDS employees were offered employment as a result of their recruitment process (a number of those employees did not take up the offer). 2 It was the evidence of Ms Donnini for Wilson that there were about 30 non-SSDS candidates for the positions but only one or two non-SSDS employees were employed.3 Transfield provided data following the proceedings that as at 17 October 2014 it had offered employment to 181 SSDS or ex SSDS employees (16 of these rejected the offer). Transfield had also offered employment to 180 non-SSDS employees as at 17 October 2014 (73 of these rejected the offer). This information is consistent with the more general information given in the proceedings by Mr Atkinson for Transfield.4

[7] The matter was the subject of a conciliation conference before me and the parties agreed and I am satisfied that conciliation was exhausted and that the other relevant steps of the disputes settlement procedures of the Agreements had been followed. I am satisfied that I can arbitrate the resolution of the disputes under Section 739 of the Act.

What is the relationship between the statutory provisions and the relevant provisions of the collective agreements?

[8] The NES includes requirements for notice of termination or pay in lieu of notice. Section 119 specifies the entitlement to and the amount of redundancy pay. Section 120 provides:

“(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[9] SSDS relies on paragraph (b)(i), and argues that it has obtained other acceptable employment for the employees concerned.

[10] Clause 15.6 of the NT Enterprise Agreement provides as follows:

“15.6 Alternative employment

Where, in a redundancy situation SSDS obtains acceptable alternative employment for an employee, that employee shall not be entitled to severance pay regardless of whether that employee accepts the offer of employment or not.”

[11] Clause 14.6 of the National Range Services Enterprise Agreement contains the same provision.

[12] An agreement can supplement and/or operate in parallel with an NES term. However, an Agreement term cannot reduce or remove an NES entitlement. If an agreement provides, expressly or by necessary implication, that the redundancy provisions apply without any exemption where an employer obtains acceptable alternative employment then Section 120 would not have any application. This is because in this circumstance the agreement provisions would supplement the NES, and not operate to the detriment of employees. However, in the current circumstances, the Agreement provision operates to the detriment of employees in that it provides, without qualification, for severance pay to be reduced to nil if SSDS obtains acceptable alternative employment, and also because it provides that this occurs regardless of whether the employee accepts the offer of employment or not, without consideration of the reason for non-acceptance.

[13] I am therefore satisfied that Section 120 operates in place of Clause 15.6 of the NT Enterprise Agreement and Clause 14.6 of the National Range Services Enterprise Agreement. There is therefore no distinction between my task in resolving the dispute under Section 739 and my task in determining the application under Section 120.

Preliminary questions for determination

[14] I proposed, and the parties agreed, that I should determine the following preliminary questions:

(a) First, whether SSDS has “obtained” alternative employment for the NTK Employees within the meaning of Section 120 of the Act, Clause 15.6 of the NT Enterprise Agreement and Clause 14.6 of the National Range Services Enterprise Agreement. I will consider this as follows:

• What does “obtain” mean in this context?



• What was the recruitment process of the incoming contractors?



• What actions did SSDS take to assist its employees?



• I will then evaluate the steps taken by SSDS and the cooperation/agreement between SSDS and Transfield and Wilson; and

(b) Secondly, whether the alternative employment offered by Transfield and Wilson is “acceptable” 5 within the meaning of Section 120 of the Act and Clause 15.6 of the NT Enterprise Agreement or Clause 14 of the National Range Services Enterprise Agreement.

Did SSDS obtain alternative employment for those employees who have been offered work with Transfield or Wilson?

What does obtain mean in this context?

[15] The parties in their submissions took me to a number of decisions. One of the decisions referred to by SSDS was the decision of Commissioner Gregory in FBIS International Protective Services (Aust) Pty Ltd. 6 Commissioner Gregory reduced the redundancy entitlements of the employees pursuant to Section 120 in circumstances where FBIS lost a contract and the employees were employed by an incoming contractor immediately following the end of the contract. As in the present case, FBIS argued that they had obtained the alternative employment with the incoming contractor and that the employment was sufficiently comparable, notwithstanding that service was not recognised, to be regarded as acceptable alternative employment. Shortly after the hearings in the present matter a Full Bench issued a decision quashing Commissioner Gregory’s decision.7 Senior Deputy President Watson, Deputy President Gostencnick and Commissioner Cribb made findings which are relevant to the circumstances of this case.

[16] The Full Bench in the FBIS matter approached the question of “obtained” as follows:

“[42] The question of what is required by the word “obtains” was considered by the Full Bench in Derole Nominees. It found:

“The word ‘obtains’ does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.

It follows that ‘obtain’ must be given some lesser meaning. The Shorter Oxford Dictionary (3rd ed revised) provides as its relevant meaning, the definition of ‘obtain’ as ‘to procure or gain, as the result of purpose and effort’. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.” 

and

“Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to ‘obtain’ alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.” 

[43] In Datacom Vice President Lawler also expressed the view that the word “obtains” in the context of s.120 should be given a very broad interpretation. 

[44] In Allman v Teletech International Pty Ltd,  Marshall J considered whether Teletech International Pty Ltd (Teletech) had been “able to arrange alternative employment” which appeared in provisions for relief from the obligation to pay redundancy payments within relevant workplace agreement, upon its employees being offered employment by Telstra upon taking over a contract formally held by Teletech. His Honour considered the Full Bench decision in Derole Nominees, finding that “[t]here is no material difference between obtaining alternative employment and being able to arrange it.”

[45] Justice Marshall found that Teletech assisted its employees to apply for jobs with Telstra, had active involvement in the transition of the employees to work with Telstra, met with Telstra to discuss the possible employment of the employees by Telstra and secured a commitment from Telstra that Telstra would give all redundant Teletech employees the opportunity to apply for employment with Telstra. He found:

“Teletech was not, however, a strong moving force towards the creation of the available opportunity. The available opportunity arose because Telstra was to perform functions formerly performed for it by Teletech. Telstra required staff. It made sense for it to approach Teletech staff. Teletech did not secure the offer of a job for Teletech staff with Telstra. As counsel for the applicants submitted, Teletech arranged an opportunity for the employee applicants to participate in a recruitment process undertaken by Telstra.” 

[46] Whilst accepting that Teletech brought the employees and Telstra together and that Teletech’s conduct was one of the factors that brought about the employment, Justice Marshall found that it did not mean that Teletech was able to arrange the employment, finding that Teletech facilitated its staff applying for jobs with Telstra, competing on their merits for the available positions. His Honour found that:

“The encouragement and facilitation of a process is not the same as doing everything possible to ensure a result. Arranging alternative employment means bringing about that employment should the employee choose to accept it. Anything short of that, such as competing with competitor applicants (albeit limited to two categories of applicant: existing Telstra and Teletech employees) does not meet the test provided by the relevant sub-clause in the AWAs.”” [citations removed]

[17] The Full Bench then proceeded to analyse the facts in respect to the actions of FBIS and assess whether or not they were sufficient to find that FBIS had obtained the employment with ACG. The Full Bench reached the following conclusion:

“[54] In our view, the limited actions of the Respondent, which did no more than establish contact between its employees and ACG, with the effect that employees were able to participate in the recruitment processes of ACG falls well short of action which “causes acceptable alternative employment to become available to the redundant employee” and the Respondent was not a “strong, moving force towards the creation of the available opportunity”.”

[18] The factual situation in the SSDS case is not identical to the FBIS situation. The effort required to obtain employment will vary depending upon the specific circumstances. I agree with the submission of SSDS that the “purpose and effort” in a change of contract situation is not directed at identifying the employment opportunities; it is generally obvious that they are to be found with the incoming contractor.

[19] SSDS submits that:

“An outgoing employer in a Change of Contractor Situation can do two things to assist its employees to obtain alternative employment with the incoming contractor:

First, the outgoing employer can communicate and co-operate with, and provide information to, the incoming contractor; and

Secondly, the outgoing employer can communicate with its employees about the available opportunities and assist the employees to apply for and succeed in procuring an offer of employment from the incoming contractor.” 8

[20] The words “co-operate”, “communicate” and “assist” in this submission blur the real issue. An outgoing employer might do a great deal of communicating, cooperating and assisting but not cause acceptable alternative employment to become available to the redundant employees. To be a strong moving force these actions need to be of a particular character. For example, an outgoing employer could reach an agreement with the incoming contractor about measures to give preference to the employees of the outgoing contractor. Such an agreement would be a particular type of co-operation and assistance.

What was the recruitment process of the incoming contractors?

[21] SSDS does not suggest that it reached an agreement with the incoming contractors to provide employment preference to SSDS employees.

[22] SSDS did explore the possibility of an agreement with the incoming contractors about employee entitlements so that service might be recognised by the incoming contractors. However, the uncontested evidence of the incoming contractors is that this did not progress beyond a preliminary exploratory stage 9 and that the incoming contractors clearly advised SSDS that they would not enter into any such agreement. Mr Marriott gave evidence that one reason for seeking such an agreement was to give Transfield more incentive to employ SSDS employees.10

[23] The incoming contractors utilised a process for filling the available vacancies which involved:

● Advertising the vacancies to the SSDS employees but also to the general public through the incoming contractors’ websites and general sites such as SEEK. 11

Conducting information sessions for interested persons. SSDS employees were particularly invited to these sessions.

Requiring interested persons to provide applications and resumes.

Applicants were then shortlisted for interview based upon the incoming contractors’ criteria. 12

Interviewing suitable applicants based on uniform selection criteria which were common for SSDS applicants and non-SSDS applicants. 13

Making offers of employment.

[24] This process was independently managed by the incoming contractors and conducted off site. Transfield and Wilson gave evidence that SSDS had no influence or bearing on the recruitment decisions. 14 Mr Atkinson for Transfield gave evidence that applicants were required to complete the same recruitment process whether they were an SSDS employee or not.15 The information from Transfield seeking expressions of interest which was distributed by SSDS stated that all applicants would undergo a “standardised recruitment and selection process”.16 The notice from Wilson also made clear that the positions were being publicly advertised on Seek and on the Wilson web site and recruitment would be in accordance with Wilson’s selection criteria.17

What actions did SSDS take to assist its employees?

[25] SSDS did distribute information to its employees which was provided by the incoming contractors about the Transfield information sessions and about the Wilson and Transfield vacancies and how to apply for the vacancies. Job application forms for Transfield jobs were distributed by SSDS. SSDS did not distribute forms for Wilson. 18 Given that Wilson and Transfield only had a short period of time in which to recruit employees,19 the support offered by SSDS to distribute recruitment documentation from Transfield and Wilson to its employees was “appreciated” by both Transfield20 and Wilson.21

[26] SSDS engaged in extensive direct communications with its employees to bring the job opportunities with Transfield and Wilson to their attention. Those communications took place through a variety of different channels, including Newsletters, News Updates, Posters, Incoming Contractor Updates, Job Packs, the posting of information on SSDS’s intranet, Yammer (SSDS’s social media program), and employee notice boards, together with advice to supervisors who were encouraged to pass on the information to employees for whom they were responsible. The communications took place on a regular basis over a number of months.

[27] SSDS established a People Support Centre (centralised HR call service) for the purpose of providing a central contact number for all employees including for matters related to recruitment with Transfield and/or Wilson. There was no evidence of the extent to which this service was used by the Northern Territory employees but it is reasonable to infer that the service may have assisted some employees to effectively participate in the recruitment process run by Transfield and Wilson. There is no evidence of any direct link between the operations of the SSDS service and the processes conducted by Transfield and Wilson.

[28] SSDS launched Yammer (a private enterprise social media network) to enable SSDS to publish updates about job opportunities, tools for job readiness and “frequently asked questions” and responses to issues raised by SSDS employees (including questions about job opportunities and Incoming Contractor recruitment processes).

[29] There was evidence that many of the employees are not Australian citizens. Many of the jobs are in areas such as cleaning, catering and security and it is reasonable to assume that some of these employees do not have high levels of education including literacy and numeracy. I am satisfied that many employees would not utilise or be able to utilise communications through the intranet and social media. The only employee who gave evidence, Ms Doyle, did not generally have access to a computer at work and did not know about the SSDS intranet. I am also satisfied from Ms Doyle’s evidence that cascading information through managers to employees and through use of notice boards was not always effective in ensuring information was delivered. However, I am satisfied that SSDS did make efforts to provide employees with information about the job opportunities with Transfield and Wilson. Ms Doyle was aware of a significant number of communications from SSDS about the loss of contracts, the incoming contractors and the job opportunities.

[30] SSDS conducted consultation sessions with its employees to provide information about the ending of the SSDS contract and the transition to Wilson and Transfield. In the period from 5 to 8 August 2014 Ms Phu, SSDS’s People Relations Manager, conducted consultation sessions with SSDS employees. Given the diversity of shifts and locations the sessions were repeated at different times in this period in Darwin and Tindal. Ms Phu notified both United Voice and the NUW of those meetings and a representative of United Voice, Ms Beth Luck, attended the sessions. 22 Ms Luck confirmed in cross examination that SSDS provided information to its employees at the information sessions in relation to: the transition process; the fact that SSDS had lost the Defence contracts; who the new contractors were going to be; encouragement for employees to apply for employment with the incoming contractors; the offer of assistance for employees in applying for jobs with the incoming contractors including a link to information about how to write a resume and tips for interviews; the offer to make computers available at the workplace for employees to prepare and submit job applications; the offer to print out digital forms for employees who were not comfortable using computers; and offering to scan in and send by email a job application by an employee to an incoming contractor.23

[31] SSDS encouraged employees to fill in a Consent to Release Information form which authorised SSDS to release information about their employment to Wilson and Transfield. The witnesses for Transfield and Wilson say that they did not receive individual employee information from SSDS. There is no evidence from SSDS witnesses that this individual employee information was ever provided to Wilson or Transfield. SSDS provided very detailed evidence of the steps they had taken to assist employees. It is reasonable to assume that if the information had been provided it would have been included in their evidence.

[32] There was some conflict in the evidence about the information SSDS provided Transfield and Wilson about its employees. Generally information was not provided about particular employees. The exception to this was that Mr Marriott gave evidence that information about head chefs was provided to Transfield. There is evidence, which I accept, that on 7 August 2014 Ms La Penna from SSDS forwarded information to Wilson about the number of SSDS employees at each location and summary data about the spread of service, the numbers of full time, part time and casual employees, the distribution of classification levels and the current pay rate for those classification levels. Mr Marriott explained in his oral evidence, that this information is beneficial to an Incoming Contractor because it permits them to understand how the business is run, what people are paid, what levels of manning may be required and what shift patterns may be needed. 24 It may also have been useful for Wilson in considering whether or not they wished to enter into any arrangement with SSDS about recognition of service. However, I am not satisfied that this information made it more likely that SSDS employees (in general or in particular) would be employed by Wilson.

[33] Mr Marriott said that SSDS provided Wilson with details of its employees citizenship status and security clearance status. Ms Donnini denied that this information was provided. 25 SSDS provided all relevant correspondence between SSDS and Wilson and Wilson were ordered to provide the same. There is nothing in the documentation which includes these details.

[34] SSDS’s notes suggest that during the 30 July telephone conference SSDS offered to share non identifying employee data with Transfield. Mr Atkinson from Transfield does not recall this. Mr Atkinson was not present at the subsequent meetings around 15 August 2014. SSDS’s notes record that SSDS provided Transfield with an overview of the current activity levels, names of key staff such as executive chefs, provided a tour of the facilities, and allowed visual access to the posted mess rosters. 26 This is the only data exchange referred to in the documents and I am satisfied that information of this sort was provided to Transfield in the meetings around 15 August.

[35] SSDS says that it enabled its employees to attend interviews, information sessions and medical assessments with Transfield and/or Wilson, when these were scheduled outside of normal working hours, by either allowing the employees to take paid time off work or arranging their rosters so they could attend. Employees were also offered transport by SSDS to attend the information sessions but that support was not required. 27 SSDS did promote access to the information sessions but they did not have input into the sessions or the interview process.28

[36] The relevant enterprise Agreements require discussions about measures to avert or mitigate the adverse effects of change in a redundancy situation and also provide for time off for one day per week of notice for the purpose of seeking other employment. I am satisfied that some, but not all, of the steps taken by SSDS in this respect are no more than what might properly be expected of a large employer in a redundancy situation consistent with the relevant enterprise Agreements. I am not satisfied that these arrangements were part of an agreement or arrangement between SSDS and the incoming contractors. The evidence suggests that the incoming contractors arranged these matters at times when many employees could attend outside of normal working time. Ms Doyle gave evidence that she attended the interview outside of normal working time. However, I am satisfied that these arrangements may have assisted some employees in applying for employment with Transfield or Wilson and hence contributed to their ability to obtain employment.

[37] SSDS provided support to employees in completing applications for jobs. There was evidence that this included:

● Assisting employees to complete and prepare job applications with Transfield and Wilson;
● Access to general information on resume writing hints and tips;
● Access on line to resume templates;
● Job Readiness information sheets;
● Access on line to cover letter hints, tips and templates;
● Access on line to job interview preparation hints, including practice interview questions and hints;
● LinkedIn profile writing and hints; and
● Access to the SSDS Employee Assistance Program if an employee was nervous or stressed.

[38] Ms Neill said that this assistance was tailored to the job opportunities at Transfield and Wilson by reference to the particular job type and information obtained from the relevant website. 29 It was not clear to me how the assistance was tailored to the particular job opportunities.

[39] SSDS assisted employees to get information about their competencies and qualifications from their employee file as part of the job application process with Transfield and Wilson. It is likely to have assisted employees in making the best possible applications.

[40] There was no evidence about the extent to which the assistance with job applications and related processes was taken up by SSDS employees. There was also no evidence that this assistance materially influenced the decision making of Wilson or Transfield or increased the likelihood that SSDS employees obtained a job offer. It is reasonable to infer that where an employee accessed this assistance or the on line materials it may have improved the quality of their application or approach to the interviews and this might have had some positive effect on the chances that an SSDS employee would get a job offer. This assistance was not part of an arrangement or agreement with the incoming contractors to give preference to or facilitate the selection of SSDS employees.

[41] SSDS made arrangements via supervisors, so that SSDS employees who had limited, or no, computer access at home could apply for jobs on line with Transfield at the workplace. It seems that this offer was taken up by Ms Doyle.

[42] SSDS conducted an audit of the security clearance status of SSDS employees and provided support with the application for security clearances in order to assist with the application process for those employees without clearances. SSDS identified that Defence had changed requirements so that the incoming contractors were required to ensure that all the employees had security clearances. A number of the existing SSDS employees did not have security clearances. SSDS corresponded with Defence and with Transfield about this issue. However, Transfield did not request that SSDS undertake this activity and there was no agreement between Transfield and SSDS about the matter. 30 I have no reason to doubt that SSDS assisted a large number of its employees with the process of obtaining baseline security clearances, to ensure they meet minimum requirements for any Defence Contract work. It is reasonable to infer that this activity may have assisted some employees in their quest for employment. However, the fact that about half of the job offers made by Transfield went to non-SSDS employees suggests that the absence of security clearances may not have been a barrier to obtaining a job offer.

[43] The issue of security clearances was not relevant for Wilson. Mr Marriott confirmed that security clearances were already required by SSDS for those engaged in “access control” jobs. 31 The SSDS advice to employees about this matter was specifically addressed to jobs with Transfield.32

Consideration of the steps taken by SSDS and the cooperation/agreement between SSDS and Transfield and Wilson

[44] Mr Marriott gave evidence that SSDS’s primary objective was to get alternative jobs for its employees. 33 The transition team which SSDS put together had a number of functions. I am satisfied that SSDS has significant consultation obligations to its employees in the transition situation and this includes consultation about measures to mitigate the effects on employees. Some of the activity of the transition team is directed at meeting these obligations. I am also satisfied, and Mr Marriott accepted, that it is important for SSDS to fulfil its obligations under the contract with Defence and also ensure that they maintain good standing with Defence as they retain a contract and may be seeking new contracts in the future. Therefore, ensuring effective delivery of service and an effective transition to the new contractors is important. SSDS could not afford for key employees to be dissatisfied and/or to leave prematurely during the transition period. I am also satisfied that to some extent the activity of the transition team was directed to establishing SSDS’s case to minimise their redundancy costs by demonstrating that they have obtained employment with the incoming contractors. I discuss some of the reasons for this conclusion a little later. The transition team serves a number of these purposes, however, I am satisfied that facilitating the achievement of alternative jobs for the employees with the incoming contractors is an important part of the work of the transition team.

[45] I found Mr Atkinson for Transfield to be a good witness. Mr Atkinson accepted that he was not aware of all communications between Transfield and SSDS during the transition period but he was in a good position to understand the nature of the relationship and the policy approach of Transfield as he was the national human resources manager for the defence base services contract. The issues with which we are concerned in this case are the human resources aspects of the transition. Mr Atkinson confirmed that SSDS employees were treated equally with non-SSDS employees in the selection process. The outcomes of the process suggest that this was the case. Half of the people who have been offered jobs by Transfield prior to 17 October 2014 are non-SSDS employees. This is despite the evidence from Mr Marriott and others that the labour market situation in NT is tight.

[46] Mr Marriott provided notes of three substantive discussions between SSDS and Transfield on 30 July 2014 and around 15 August 2014. 34 Mr Atkinson gave evidence that contested some of the matters listed in respect to the telephone discussion of 30 July 2014. However, at its highest the notes reveal that Transfield and SSDS agreed to work cooperatively with respect to the recruitment process which Transfield intended to run. Mr Atkinson was not present at the meetings around 15 August 2014. At the meetings SSDS presented to Transfield an overview of the current activity levels, names of key staff such as executive chefs, provided a tour of the facilities, and allowed visual access to the posted mess rosters. Most of the notes related to the handover of contracts such as storage, asset, bar stock, organisational issues and the notes confirm a level of cooperation between Transfield and SSDS in respect to those matters. I accept the SSDS evidence that SSDS and Transfield cooperated to promote attendance at the Transfield information session.

[47] In respect to Wilson, Mr Marriott provided notes of a meeting on 8 July 2014. 35 At that meeting SSDS outlined its desire to work closely with Wilson in finding opportunities for SSDS workers. SSDS provided Wilson with information about the relevant collective agreements and there was agreement that Wilson would provide communications about job advertisements and the recruitment process to SSDS. The notes of this meeting suggest that there was agreement to “joint presentations to staff” and that Wilson would welcome payroll details of individuals once consents were in place. Ms Donnini gave evidence that these matters were completely inconsistent with the approach Wilson took to the recruitment process. There is no other evidence or documentation from Wilson which reveals agreement to joint presentations and joint presentations did not occur.

[48] On 18 July 2014 Wilson requested that SSDS distribute a flyer about recruitment activities. In that flyer Mr Rogers for Wilson stated:

“Wilson Security will work closely with Defence and SSDS management to keep you fully informed of the implementation process.” 36

[49] At the meeting in early August 2014 37 Wilson provided SSDS with the approximate number of security staff they were seeking and details of when applications would close. SSDS notes say that: “they will work with us on interviews, our assistance to arrange and liaise will be helpful”. Considered in context this is a reference to allowing employees time off to attend interviews. It may also be a reference to the suggestion that interviews and meetings may take place on site but this was subsequently rejected by Wilson and possibly the Department of Defence. I am not satisfied that there was any agreement about the location of interviews, the content of interviews or the timing of interviews. SSDS sought to arrange interviews on site and to liaise with Wilson about times. I am satisfied that Wilson was supportive of this arrangement but in the end it did not occur.38

[50] SSDS notes of the 6 August meeting also say: “Will assist us to obtain employment for staff and happy to work together on this objective”. Considered in context this is SSDS’s interpretation of the outcome not a direct reflection of Wilson’s words. Consideration of the documentary evidence and the evidence of Mr Marriott and Ms Donnini does not lead to a conclusion that there was an agreement to give preference or priority to SSDS employees in Wilson’s recruitment process. I am not satisfied that Wilson at any stage agreed that SSDS was obtaining employment for SSDS employees with Wilson. SSDS notes also record that: “Wilson agree working with SSDS to understand employee position will help both parties particularly in the tight NT labour market.” Although SSDS’s notes give this a particular slant, I am satisfied that Wilson did agree that in a tight labour market it was focusing on ensuring that SSDS employees were aware of its recruitment activity and were encouraged to participate in it. I am also satisfied that Wilson indicated that it would appreciate feedback about the position of SSDS employees.

[51] SSDS told Wilson that it was prepared to assist in ensuring employees can attend interviews. 39 I am not satisfied that this was requested by Wilson or was part of an agreement with Wilson.

[52] SSDS did circulate information about the vacant positions and the recruitment process on four occasions. I am satisfied that Wilson wanted to work closely with SSDS and Defence to keep SSDS employees fully informed of the process throughout July and the first half of August 2014.

[53] SSDS submits that the focus of inquiry is on the efforts of SSDS not on the attitude of the incoming contractors. They point to the fact that in some cases if an employee refuses an employment opportunity obtained by the employer their redundancy pay may be reduced. They submit that:

“By analogy where an outgoing employer has taken all steps available to assist its employees to receive an offer of alternative employment and the outgoing employer has, to the extent to which it has been possible, communicated with, and assisted, an Incoming Contractor to employ the outgoing employer’s employees, the outgoing employer will be found to have “obtained” the alternative employment, notwithstanding the unilateral action of an Incoming Contractor in ceasing to communicate with the outgoing employer at a particular point in time.” 40

[54] This submission is not consistent with the FBIS Full Bench decision quoted earlier. The test is not whether or not the outgoing contractor has taken all available steps to assist its employees to receive an offer of alternative employment. The evidence required is not simply evidence of the efforts made by the outgoing contractor to communicate with and assist the incoming contractor. As identified by the FBIS Full Bench it is necessary to consider whether the actions of the outgoing contractor “causes acceptable alternative employment to become available to the redundant employee” and whether or not the outgoing contractor was a “strong, moving force towards the creation of the available opportunity.”

[55] The unions argued that in circumstances where it is the incoming contractor which makes the decision to hire, it is difficult to see how the outgoing contractor can be the moving force if there is no cooperation at the time when the incoming contractor is making decisions about who to hire. However, I am satisfied that it is possible that an outgoing contractor could, depending upon the circumstances, be a moving force if earlier in the process there was an agreement with the incoming contractor to give preference or priority to the employees of the outgoing contractor or if the actions of the outgoing contractor caused the incoming contractor to favour the employees of the outgoing contractor.

[56] There was cooperation between SSDS and Wilson and Transfield. Given the nature of the contracts it would be extraordinary if there had been no cooperation. For example, there was discussion about “all SSDS food and alcohol would be removed unless mess committees agreed to retain some bar stock.” There was also discussion about the asset register and use of storage facilities and 3rd party supplier arrangements. 41

[57] SSDS sought to show that the level of cooperation was extensive and mutually directed at facilitating the employment of SSDS employees with Wilson and Transfield. Wilson and Transfield sought to show that the level of cooperation was minimal and that SSDS were attempting to create a paper trail in order to strengthen its case to deny SSDS employees redundancy pay. SSDS submitted that Wilson and Transfield had a commercial interest to ensure that its competitor, SSDS, paid redundancy pay and also were trying to minimise the appearance of any cooperation to avoid any claim that there had been a transfer of business.

[58] Having considered all of the evidence I am satisfied that there is some basis for these competing submissions. There is no doubt that Wilson and Transfield were concerned that there could be a claim in respect to transfer of business and they said that this was the main reason why they did not wish to enter into a formal agreement in respect to employee service. For the reasons discussed earlier I did not consider that Mr Atkinson for Transfield was disguising the level of cooperation. Ms Donnini for Wilson at some stages during her cross examination was determined to underplay the significance of any evidence of cooperation. I have taken this into account when evaluating the SSDS meeting notes and SSDS communications. However, this does not mean that I reject Ms Donnini’s evidence as unreliable or untruthful.

[59] I am satisfied that Wilson and Transfield were determined to manage their own recruitment process. SSDS assisted by distributing information and by facilitating the participation of its employees in the SSDS process. The documentary evidence on this matter is consistent. There was nothing in the evidence of SSDS that seriously challenges the direct evidence of Mr Atkinson and Ms Donnini and the correspondence from Transfield and Wilson on that matter. The notes of Mr Sadler, Base Service Contract Manager for SSDS, who attended the Transfield information session on 28 July 2014 illustrate this point. His notes state: “My opinion - I don’t believe any collaborative discussions with SSDS & TS will happen as far as getting/assisting SSDS staff employment with TS. It was made very clear that all successful applicants will be based on merits.” 42

[60] Mr Marriott, Ms Phu and Ms Neill provided meticulous and helpful details of SSDS’s actions. However, Mr Marriott and Ms Phu used expressions in their evidence which at times generalised and over stated the character and impact of SSDS’s actions and the nature of the cooperation with the incoming contractors. I am satisfied that, at least to some extent, SSDS sought to maximise the appearance of cooperation with Wilson and Transfield in order to strengthen their case to reduce redundancy pay. When SSDS distributed material from Wilson or Transfield about job opportunities it commonly provided a covering note from SSDS which said that this was part of “our efforts to provide suitable alternative employment” or words to this effect. 43 Mr Marriott wrote to Mr Parkinson of Transfield on 22 August 2014 about SSDS’s efforts to assist employees to achieve security clearances. In that letter he says: “SSDS has gone to great lengths to obtain suitable alternative employment for all its NT employees.”44 The existence of such a statement in correspondence from SSDS to Transfield is not evidence of any arrangement with Transfield. At this stage SSDS employees had not obtained employment with Transfield and there was no agreement to prefer SSDS applicants.

[61] On 2 September 2014 Mr Marriott wrote to Mr Sullivan of Wilson seeking information on who will be receiving an offer of employment. This information was not provided in response. However the letter says: “Obviously one of SSDS’s key priorities is to obtain suitable alternative employment, irrespective of whether they accept employment with Wilson Security.” 45 I am satisfied that the consistent use of this type of expression suggests that SSDS had in mind it’s intended claim to reduce redundancy payments when communicating with its employees and the incoming contractors.

[62] On 6 August 2014 Mr Marriott wrote to other members of his transition team: “Please find attached info from Wilson Security which had been sent to Rick Hyde. I am aware that the first two have been distributed and dealt with, but the final letter dated today needs to be distributed within the comms plan with the usual comment regarding SSDS objective of finding suitable alternative employment for our employees.” 46 This suggests that repetition of this type of expression in communications was a part of the communications plan during the transition.

[63] Mr Marriott also provided a note of a meeting with Wilson on 8 July 2014. The note records the SSDS actions arising from the meeting and the last point is as follows: “clear position on the provision of “acceptable alternative employment” and use of the FWA and FW Commission in determining an outcome.” This suggests that from a very early stage in the transition process one of the motivations for SSDS’s engagement with the incoming contractors was to enhance the prospects of success in SSDS’s claim to reduce redundancy payments. I do not suggest that there was anything improper in this motivation. SSDS has an entitlement under the Act to make an application to reduce redundancy payments.

[64] In a meeting around 15 August 2014 which discussed matters such as the use of storage facilities, removal of food and alcohol, transfer of arrangements with 3rd party suppliers, and a tour of the facilities as part of handover arrangements the notes of Mr Wilson from SSDS include the following: “I personally gave my assurance of support but qualified this support was to ensure SSDS staff had all the opportunity to continue in employment. I believe operational Transfield management did not understand the scope of what is required or the employment market and difficulties in NTK.” 47 This suggests that SSDS was concerned that their motivation about continuing the employment of SSDS employees was not necessarily shared by Transfield.

[65] The cooperation between SSDS and Transfield in respect to the recruitment process ceased by the end of August. The cooperation between SSDS and Wilson in respect to the recruitment process ended by mid August 2014. 48 Transfield made this clear in a letter from David Reynolds to Trevor Marriott of 29 August 201449 and again on 1 September 2014.50 Wilson made this clear in an email from John Rogers to Mr Marriott of 11 August 2014.51 On 11 August 2014 at 8.38 am Mr Sullivan, General Manager Regional Operations from Wilson, emailed Mr Marriott requesting that a further reminder notice about the close of applications be distributed to NT staff. Mr Marriott for SSDS responded at 9.57am: “This looks fine and dovetails with our objective to obtain suitable alternative employment for NTK employees. I will arrange for distribution this morning.” Mr Rogers, General Manager Southern Pacific for Wilson, who had been copied into the email chain responded as part of the same email chain at 3.35pm:

“I would just like to be absolutely clear that we have not reached any agreement or understanding about the future employment of any SSDS employees. I also wish to reinforce that there is no assurance, agreement, undertaking or arrangement between Wilson Security and SSDS in relation to employees or assets related to the work SSDS employees have been doing.

I do however see that there could be mutual benefit in discussing the liabilities arising from these employees. To effect this discussion you will be contacted by our agent, Mr Ross Levin. I have passed Ross your contact details.” 52

[66] SSDS submits that Mr Rogers’s comments should be read as directed to denying the existence of any transfer of assets which might lead to claims about transfer of business. However, given the fact that Mr Rogers’s comment is a direct response to Mr Marriott’s claim that the sending of the reminder note “dovetails with our objective to obtain suitable alternative employment” I am satisfied that Mr Rogers is making two separate but related points. Firstly, that SSDS has not obtained suitable alternative employment for employees with Wilson and that there is no agreement or understanding to that effect, and secondly, that there is no arrangement about transfer of employees or assets. Wilson then indicates a willingness to discuss further the issue of liabilities arising from SSDS employees who might be engaged by Wilson. I reach this conclusion based upon consideration of the plain words and the context including surrounding evidence. Even if I am wrong about this matter there is no documentary evidence of further cooperation between SSDS and Wilson concerning the recruitment process after this date.

[67] The message that cooperation was at an end was reinforced in a number of subsequent communications. There is some correspondence after the end of August but that correspondence does not demonstrate cooperation in respect to the recruitment process. The decisions about who would or would not be employed by Wilson and Transfield were made after the period of cooperation had ended. 53 Mr Marriott was aware that Transfield commenced making offers of employment in the second week of September 2014 and that Wilson commenced offers in late August 2014.54 SSDS argues that the cooperation ceased because the incoming contractors were concerned about possible transmission of business arguments. It really doesn’t matter why the cooperation ceased the fact is that it did.

[68] The actions of SSDS can be characterised as:

● Arranging opportunities for SSDS employees to participate in a recruitment process undertaken by Wilson and Transfield.
● Taking appropriate steps to mitigate the adverse effects of the loss of the contract and to improve the chances of SSDS employees being successful in the recruitment process; such as time off to attend interviews, assistance with security clearance in the case of Transfield jobs, information about employment opportunities, information about the steps in the process surrounding the ending of the contract and assistance with job search and applications (e.g. application forms, covering letters and resumes).
● Attempting, unsuccessfully, to achieve a greater level of cooperation and agreement with Transfield and Wilson to obtain employment for SSDS employees.

Conclusion in respect to Transfield

[69] I am satisfied that the following exchange in the cross examination of Ms Phu accurately reflects the nature of SSDS’s involvement in Transfield’s recruitment process:

“So what it sounds like is Transfield ran an independent merit based selection process and you guys were outside the tent, so to speak, providing employees with assistance to apply; would you agree?---Yes.

Okay, now - - -?---However I'd like to add that if we didn't provide that support a lot of those people wouldn't have had a fair opportunity to make it by the deadline.” 55

[70] Ensuring that employees have a fair opportunity to make an application by the deadline and assisting them to make a more effective application does not mean that SSDS were a “strong, moving force towards the creation of the available opportunity.” I accept that the significant level of support SSDS offered to its employees in Transfield’s recruitment process may have improved the chances of some individuals in that process. However, fundamentally candidates were being selected based upon their qualifications, experience and ability to meet Transfield’s selection criteria. The strong moving forces towards the creation of a job offer in these circumstances were the actions of the candidate and Transfield. The actions of SSDS were of assistance but they could not be described as a strong moving force.

[71] The only matter which potentially goes beyond this was SSDS’s action to assist employees to gain security clearances. If there was evidence that the holding of a security clearance was one of the mandatory selection criteria used by Transfield then this action had the potential to materially affect a candidate’s chances of getting a job. However, for the reasons discussed earlier I am not satisfied that Transfield did make this a mandatory selection criterion.

[72] After considering all of the evidence of the actions taken by SSDS to assist its employees to obtain employment with Transfield and the level of cooperation and agreement between SSDS and Transfield I am not satisfied that SSDS caused acceptable alternative employment to become available to the redundant SSDS employees and SSDS was not a “strong, moving force towards the creation of the available opportunity” with Transfield. SSDS did not obtain acceptable alternative employment with Transfield.

Conclusion in respect to Wilson

[73] Given that all except one or two of the offers made by Wilson were to SSDS employees, it might be suggested that it is reasonable to infer that the actions of SSDS were a strong moving force in causing the jobs with Wilson to become available to SSDS employees. Certainly there is a difference between the Wilson and the Transfield situations. In the Wilson case there is a possible inference which could be drawn between the actions and the outcomes which is not available in the Transfield case.

[74] The following cross examination of Ms Donnini of Wilson sets out why SSDS employees were favoured in Wilson’s recruitment process and why the assistance of SSDS was helpful in that process:

“Your evidence is that the only solution Wilson Security had was to encourage SSDS employees to apply for employment with Wilson Security. That's right, isn't it?---Yes.

The reason that was so was because, first, there was only a short period of time between the announcement of the contract and the commencement of the contract?---Yes.

That period of time was about 10 July to about 1 October?---I believe so. I can't specifically comment on that.

That's a very short period of time in which to employ the necessary employees in circumstances where security clearances are required. Correct?---Yes.

It was also the case that the labour market in the Northern Territory at that time was tight, wasn't it?---I believe so, yes.

They're all the reasons why the only real solution available to Wilson Security was to actually encourage SSDS's employees to apply for employment with Wilson Security?---Yes”

There was no prospect of Wilson Security going out to the open market and finding suitable employees in the period of time it had available. Correct?---We still went to the market. 56

......

“In order to encourage SSDS's employees to apply for employment with Wilson Security, you needed to find some way to communicate with those people, didn't you?---Not necessarily.

How do you encourage someone to apply for a job if you can't communicate with them? That's a nonsense, isn't it?---By that I meant you post an advert and you advertise a position.” 57

....

“You agree with the proposition that the fastest and most efficient way for Wilson Security to communicate with SSDS's employees was through SSDS, wasn't it?---Yes, it was convenient to Wilson Security.

It was the most efficient and quickest way for those communications to be passed on, wasn't it?---Yes.” 58

[75] Ms Donnini gave evidence that the reason why so few non-SSDS candidates were hired was because they did not have defence clearances and the relevant experience. 59 Ms Donnini said that: “there was only ever going to one place where we would be finding suitable candidates and that would be through the SSDS workforce.”60

[76] The SSDS employees were the focus of Wilson’s recruitment activity even though the positions were advertised widely. SSDS’s activity in facilitating SSDS employee participation in that recruitment activity is therefore significant. Notices were forwarded to SSDS employees on behalf of Wilson on four occasions in the period before applications closed. One of these notices provided advanced notice as to when the jobs would be advertised on SEEK and on the Wilson web site. 61

[77] The SSDS employees had a natural advantage in obtaining employment with Wilson given that they had the necessary experience and security clearances in the context of a short transition period and a tight labour market in the NT. However, given that the SSDS employees were aware that the contract was coming to an end and who the incoming contractor was, it is likely that many of the SSDS employees would have applied for jobs with Wilson regardless of the actions taken by SSDS to inform them about the recruitment process. Regardless of the actions taken by SSDS it is likely that those who were interested in the jobs would have obtained the necessary information from Wilson and attended the necessary interview. There is no suggestion that employees were expected to attend more than one information session and more than one interview and employees would generally have had a right to time off for this purpose if required. Those who applied for the jobs had a good chance of being successful given their qualifications, security clearances and experience regardless of any assistance offered by SSDS in preparing resumes and applications and in respect to interview preparation.

[78] As in the case of Transfield, ensuring that employees have a fair opportunity to make an application by the deadline and assisting them to make a more effective application does not mean that SSDS were a “strong, moving force towards the creation of the available opportunity.” I accept that the significant level of support SSDS offered to its employees in Wilson’s recruitment process may have improved the chances of some individuals in that process. However, fundamentally candidates were being selected based upon their qualifications, experience and ability to meet Wilson’s selection criteria. The strong moving forces towards the creation of a job offer in these circumstances were the actions of the candidate and Wilson. The actions of SSDS were of assistance but they could not be described as a strong moving force.

[79] Ms Donnini for Wilson sought to downplay the level of cooperation and assistance provided by SSDS in making employees aware of Wilson’s recruitment process. SSDS also provided its employees with access to assistance with completion of applications and to enable them to better participate in Wilson’s recruitment process. However, I am not satisfied that the actions of SSDS influenced the decisions made by Wilson as to which employees they made offers. There is no clear evidence that there were employees who received an offer who would not have received an offer if it had not been for the supportive actions of SSDS or the cooperation between SSDS and Wilson. I am also not satisfied that I can infer that this was the case.

[80] Mr Sullivan of Wilson wrote to Mr Marriott on 2 September 2014: “In order to be quite transparent about our position, Wilson does not consider that SSDS has played any role in our decision to make offers of employment to SSDS current security officers.” 62 I am satisfied that this is an accurate statement.

[81] These actions taken by SSDS do not constitute action which “causes acceptable alternative employment to become available to the redundant employee” and which establishes that SSDS was a “strong, moving force towards the creation of the available opportunity”.

[82] I am not satisfied that SSDS obtained acceptable employment for its employees with Wilson.

[83] My decision in this matter is directly related to the evidence about the actions taken to assist SSDS employees to obtain employment with the incoming contractors and the cooperation and agreement between SSDS and the incoming contractors. The decision is therefore specific to the circumstances surrounding the NTK contract. The evidence in respect to these matters as they affect the other defence contracts may well be different.

Is the alternative employment offered by Transfield and Wilson “acceptable”?

[84] The Full Bench in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd — Clothing Trades Award 1982 (Derole) 63 considered what constitutes “acceptable alternative employment”:

“What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, 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. In our opinion there are obvious elements of such a 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.” 64 (emphasis added)

[85] In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd 65 (Hot Tuna), a Full Bench of the Commission found that the onus rested on the employer making an application to vary redundancy pay to demonstrate that the alternative employment is acceptable. The determination of that issue may involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and travelling time. The determination of the question of acceptability of the employment however can only be done on the evaluation of the facts proved in evidence or otherwise established.

[86] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. 66 That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group.67 The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

[87] It is therefore incumbent upon SSDS to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. 68

[88] Given my decision in respect to “obtain” it is not necessary to determine the matter of whether the alternative employment is acceptable. However, I will make the following observations.

[89] The wages and conditions for those employed by SSDS under the NTK contracts are close to the minimum award safety net (except for a relatively small group who are employed as range operators). 69 The wages and conditions with the incoming contractors are also close to the minimum award safety net. I accept the comparisons of the relevant wages and conditions provided by SSDS. If an employee received a job offer which was for similar status work, in the same or a comparable location, with similar job security (i.e. full time, part time or casual) and with similar working hours then the only significant disadvantage in the new employment offered would be the loss of non-transferable credits in respect to accrued service, such as unfair dismissal protection, accumulated personal leave, and credit towards long service leave. I would be satisfied, notwithstanding the loss of service, that the employment is acceptable alternative employment.

[90] The factors surrounding the loss of service are an important part of the rationale for redundancy entitlements. It is appropriate that the loss of service be compensated even if the alternative employment is acceptable. This would mean that I would not reduce redundancy entitlements to nil. I would consider further submissions from the parties before making a decision as to what the appropriate reduction should be having regard to the profile in respect to service related entitlements of the relevant employees. I would also have to consider particular individual circumstances including cases where it is argued that the employment offered was not similar status work, in the same or a comparable location, with similar working hours, with similar levels of job security and/or on the basis of other particular circumstances. It would not be appropriate to reduce the entitlements of any employee without giving the affected employee an opportunity to be heard in respect to these matters. At this stage of the proceedings it is only the relevant unions who have been involved. 70

Conclusion

[91] I am not satisfied that SSDS obtained acceptable alternative employment for its employees employed under the NTK contracts with Wilson or Transfield. This determination is the settlement of the disputes under Section 739 as far as they relate to those who were offered employment with Wilson or Transfield under the NTK contracts. The applications under Section 120 are dismissed in so far as they relate to the NTK contracts and those who were offered employment with Wilson or Transfield. SSDS are to advise the Fair Work Commission and the other parties within seven days if there are any other employees in respect to whom they are seeking to be heard in respect to their applications in so far as they relate to the NTK contracts.

COMMISSIONER

Appearances:

Mr T Saunders appeared for SSDS.

Mr S Bull and Ms G Starr appeared for United Voice.

Mr A Snowball appeared for the NUW.

Hearing details:

2014

Sydney

October 2, 8 and 14

 1   There are 10 different enterprise agreements that apply to SSDS’s employees who work on the Contracts, depending on the location of work and the particular Contract on which an employee has been working.

 2   Exhibit UV2, Attachment LD5.

 3   PN1591 to PN1594.

 4   I advised the parties that I intended to rely on this data and provided them with an opportunity to make further submissions.

 5   In a general sense without considering the particular circumstances of any offer made to a particular employee.

 6   [2014] FWC 1922.

 7   Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737.

 8   Submissions of SSDS at para 20.

 9   PN352.

 10   PN333.

 11   PN1229, PN1326 to PN1330, PN2179 and PN2180.

 12   PN1234 and PN1574.

 13   PN1234 and PN2184.

 14   PN1258 and PN2185.

 15   PN1236 and PN1237.

 16   Statement of Natasha Neill, Attachment NN25. See also Exhibit S1, Attachment TM3.

 17   Statement of Natasha Neill, Attachment NN41.

 18   PN2181.

 19   Defence announced Transfield and Wilson Security as the new contractors on 10 July 2014 and their contracts commenced on 1 October 2014.

 20   Exhibit S1, Attachment TM3 (“Your support is appreciated”), Attachment TM5 (“It would be appreciated if you send through to your staff as agreed … again, thanks for your support”), Attachment TM1 (“I would appreciate your disseminating this through to NT employees”).

 21   PN1866 and PN1867.

 22   Exhibit S3, at paras 23 and 24, and TP12 and TP13. See also PN2738 and PN2739.

 23   PN2743 to PN2770.

 24   PN743.

 25   PN1772.

 26   Exhibit S1, Attachment TM14.

 27   PN1192.

 28   SSDS management did attend the Transfield information session as observers.

 29   PN922 to PN925.

 30   PN1265.

 31   Exhibit S1, at para 37.

 32   Exhibit S1, at para 43(a).

 33   PN111.

 34   Exhibit S1, Attachments TM7 and TM14.

 35   Exhibit S1, Attachment TM28.

 36   Exhibit S1, at para 69.

 37   Exhibit S1, Attachment TM33.

 38   Exhibit S7, Wilson note of meeting of 6 August 2014.

 39   Exhibit S1, Attachment TM35.

 40   Submission of SSDS at para 39(d).

 41   Exhibit S1, Attachment TM14.

 42   Exhibit S3, Attachment TP3.

 43   See for example Statement of Natasha Neill, Attachment NN41.

 44   Exhibit S1, Attachment TM19.

 45   Exhibit S1, Attachment TM38.

 46   Exhibit S1, Attachment TM34.

 47   Exhibit S1, Attachment TM14.

 48   PN524 and PN2193.

 49   Exhibit S1, Attachment TM25.

 50   Exhibit NUW1.

 51   Exhibit Wilson1.

 52   Exhibit Wilson1.

 53   PN1257 and PN2198.

 54   Exhibit S1, at paras 64 and 79.

 55   PN1187 and PN1188.

 56   PN1840 to PN1846.

 57   PN1853 to PN1854.

 58   PN1857 to PN1858.

 59   PN1593.

 60   PN1594.

 61   Exhibit S1, Attachment TM32, and PN1995 to PN1997.

 62   Exhibit UV2, Attachment LD4.

 63   Print J4414; Re Clothing Trades Award 1982(1) (1990) 140 IR 123.

 64   Print J4414, at page 5.

 65   (1988) 27 IR 226, at paras 230 to 231.

 66   Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia [PR974699] at para 32.

 67   Print J4414, at page 5.

 68   Vicstaff Pty Ltd T/A Stratco v Bradley May; Malcolm McFerran [2010] FWA 3141, at paras 29 and 30.

 69   Exhibit S8.

 70   Mr Matarazzo provided written submissions on behalf of four SSDS employees.

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<Price code C, PR557164>