PN1

THE ASSOCIATE: Thank you, parties, for your patience. Commissioner Cambridge has now been joined to the conference call and the Fair Work Commission is now in session for matter number C1224/2022 a section 120 application by Cleanaway Operations Proprietary Limited trading as Cleanaway Waste Management, for mention and directions by telephone.

PN2

THE COMMISSIONER: Yes, good morning, this is Commissioner Cambridge speaking. The proceedings today are being conducted by way of telephone conference and the proceedings are being recorded. We might start by taking the appearances in the matter, please. Who's appearing for the applicant?

PN3

MR EDWARDS: If it pleases the Commission, my name is Sean Edwards and I appear on behalf of the applicant.

PN4

THE COMMISSIONER: Thank you, Mr Edwards, and for the respondent?

PN5

MR RAINEY: Good morning, Commissioner Cambridge. If it pleases the Commission I am appearing on behalf of the respondent. My name is Adrian Rainey and the Member's name is Peter Gorham.

PN6

THE COMMISSIONER: Mr Gorham, yes.

PN7

MR RAINEY: I also have Mr Grumley here.

PN8

THE COMMISSIONER: Thank you. The matter has been listed for mention and directions today. It's your application, Mr Edwards. I note a particular issue that might be a bit of a problem with this application. I'm not sure whether you've or there's been a discussion between the parties between the parties about this but one of these applications involves essentially an application to vary a redundancy pay that would have otherwise been paid under the NES, but that's not the circumstance here, as I understand it.

PN9

MR EDWARDS: No, Commissioner, it's not and probably to be transparent, we haven't had communications with the TWU on this particular issue so that's probably the first point I'd like to raise. Secondly, you're correct, it hasn't bene paid under the NES but we're seeking it to be reduced to nil because we're of the view that we obtained acceptable employment and that employment was unreasonable refused.

PN10

THE COMMISSIONER: I understand the basis of your issue but you can't use this application for those purposes because the Act is quite specific. I've had to look at this before. I don't know whether you have but I've had to deal with it before. Section 120 is very specific, it says:

PN11

(1) This section applies if

PN12

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

PN13

That's not the circumstance. The amount of redundancy pay that might be payable here arises not under section 119 but under I think it's clause 17 of your enterprise agreement.

PN14

MR EDWARDS: Sorry, Commissioner, I'm just turning to my Fair Work Act now.

PN15

THE COMMISSIONER: As I say, I've had to look at this in other instances, it's one of those things where if the redundancy arises under the NES under section 119, then an employer can make an application to have it reduced and that's section 120, or varied. Usually it's reduced; in this case you want to reduce it completely to nil. That's fine, you can do that and of course the basis for that is that the employer asserts they've – there's two bases.

PN16

One is that they've obtained other acceptable employment or they cannot pay. We're not talking about the latter, cannot pay; it's obtaining other employment. The premise of all of that is that the entitlement has to arise from section 119 and that's not the case. As I say, I've dealt with this before and so what it really means is that it's a different process that under the NES the NES prescribes that this must happen and that the employer is required to essentially obtain the exemption, if that's the right way to describe it.

PN17

If it comes under an enterprise agreement, it's the relevant enterprise agreement that deals with this, and so the employer is not breaching the NES by not paying anything and obliged to make the application under section 120. The sort of roles are reversed. The employer simply says, well, under clause, we'll find it at 17.5, paragraph (c):

PN18

The employer will not have to pay redundancy pay if the employee is offered acceptable alternative employment.

PN19

It's even slightly different to section 120. It's not about obtaining acceptable employment, it's only an offer. Once again you see the immediate distinction. As I say, the sort of the onuses or the roles are essentially changed here and the employer just simply says, 'Well, we're not paying you because we say the provisions of 17.5(c) apply.' The onus is then on the employee that if they think that's a problem, then they can challenge it and effectively they would require the activation of the process probably one of two processes.

PN20

One would be activation of the dispute settlement procedure, you'd have to go through all of those components. That might be difficult if the employee has actually been terminated and the employment has come to an end, because there are problems then for whether there remains a coverage for a person who's no longer covered actually by the enterprise agreement.

PN21

In order to avoid that potential problem the employee really has to mount an underpayment of wages claim and say in the relevant Federal Circuit Court, 'I was entitled to this payment under 17.5 and the employer has misapplied subparagraph (c)' and then pursue it under payment of wages claim, and that's probably where the matter would have to go.

PN22

MR EDWARDS: Thank you, Commissioner, for explaining that. I don't necessarily disagree with your submission there.

PN23

THE COMMISSIONER: You might want a chance to think on it. I'm just putting this out there because I've just dealt with it before and you might want an opportunity to perhaps even get formal advice about what I'm saying and I'm putting it all on the record, I'm not hiding from it, because I'd be happy to be persuaded otherwise but, as I said, I've just dealt with it in other circumstances and this has been a fairly firm position that's been established but certainly by all means I give you ample opportunity to obtain your own advice to see whether, you know, this is confirmed or a different view is taken.

PN24

I certainly wouldn't be dismissing your application because if you still want to run it, you can but, as I say, I think if I'm right then you really don't have to do anything, it's really for the employee to chase an underpayment of wages claim.

PN25

MR EDWARDS: I mean, Commissioner, what you say makes sense. Just the reason I did make the application was I've had the reverse in the Small Claims Federal Court where the judge actually chastised me, to be honest, and said, 'You need to go to the Commission', and it was similar provisions, 'and put it before the Commission for 120', and they ruled against me for not doing that. That's not around the facts or anything, it was just around more a process position and hence why under these circumstances we filed with the Commission in those term.

PN26

But, again, with the Federal Court, the Circuit Court and the Small Claims, you don't get printed decisions on those sort of terms, it's just pretty much orders made. Commissioner, what you say makes a lot of sense and has a lot of logic to it, so I'm probably inclined based off what you're suggesting, to withdraw this application and lay it at the feet of the employee to chase down the payment and deal with it on those terms.

PN27

THE COMMISSIONER: I don't want you to make any immediate decision and I certainly want the employee and the TWU to say what they want to about all of this but, as I say, I've dealt with these circumstances before. I'm happy to request a transcript of what I've said so that, you know, that that can be provided to both yourself and to the TWU, so that everyone can consider what I'm saying.

PN28

If this is wrong, so be it but, as I say, this is the process that it's been put before me on I think two previous occasions and, unfortunately, in one instance what had happened was that the whole 120 proceeding had advanced and it wasn't until we got to the actual hearing that we discovered that the agreement operated. It was a time expired agreement like this one is too.

PN29

It's finished, it's gone past its normal date and both the employer and the employees in that instance sort of mistakenly believed that because it had gone past its nominal date, the redundancy clause didn't apply and they both in the application said it was section 119. But then when we actually got to the hearing it became clear that it wasn't section 119 that was providing the benefit, it was the clause in the relevant enterprise agreement.

PN30

You can't use section 120, it's quite clear, you can't use section 120 if the entitlement is coming from the enterprise agreement as opposed to the section 119, the NES. I'll invite Mr Rainey or whoever from the TWU to say what they want to but I think that this position probably needs to be carefully considered by both sides and then I'm happy to relist the matter if that's the request in, you know, a few weeks' time once some consideration of all of this is undertaken. Or, alternatively, just wait to see what the applicant decides to do. Mr Rainey, do you want to say anything about what I've had to say?

PN31

MR RAINEY: Thank you, Commissioner. We agree with the Commissioner's view on this but in the interests of seeking to resolve the issue it would be our preference if the applicant sought – came off the record, we'd be happy to do that. If not, we would just see where the applicant decides to take this. If we can be provided with a copy of the transcript, great, but we're in the applicant's hands at this point.

PN32

THE COMMISSIONER: Yes. It might be that there could be some, I think, separate communication between the parties about all of this and that might help. You might be able to sort things out without the need for there being any proceedings either here or in the Circuit Court or anywhere for that matter but I think that's probably best done directly and privately between the parties.

PN33

As I say, I think for the benefit of the parties I'll have the transcript of the proceedings today provided, so we'll request the transcript and then that gets sent to both sides. Then perhaps in a couple of weeks' time, all I'll really ask for is for the applicant to indicate what the status of the matter is, whether it's going to proceed or if you're still considering things.

PN34

Obviously we'll be as flexible as we can and accommodate whatever position. But I think with the benefit of the transcript from today, each side can consider what I've had to say and then you can communicate directly with one another and then in two weeks' time tell me whether you've made any progress or what you want to do with the application. I think that's the position. Mr Edwards, are you comfortable with that?

PN35

MR EDWARDS: I'm comfortable with that, Commissioner, yes.

PN36

THE COMMISSIONER: I mean, it's just one of these rather unusual quirks of the legislation where it's quite specific about how it operates and I'm not sure about the Circuit Court judge that takes a different view but I think I'm on pretty firm ground here but, anyway.

PN37

Unless there's anything further what we'll simply do is adjourn the matter and request that the applicant provide a status update of the position in the matter, say, by the end of the month which will be, in two weeks it's exactly 1 April. That's a bit of an unfortunate date, it has some connotations but I think by close of business on 1 April we'll ask for you, Mr Edwards, to simply just give us a status update of what you're proposing in respect of the application.

PN38

MR EDWARDS: Thank you, Commissioner.

PN39

THE COMMISSIONER: If there's nothing further, I thank everyone for participating in the proceedings today and the Commission will now adjourn.

PN40

THE ASSOCIATE: The Fair Work Commission is now adjourned. Unless there are any further questions, I will disconnect from the Commission's end. Thank you.

ADJOURNED TO A DATE TO BE FIXED [10.18 AM]