PN1

THE COMMISSIONER: Good morning, parties, Commissioner Johns speaking. Ms Gall, can you hear me clearly?

PN2

MS GALL: Yes, I can, Commissioner, thank you. I appear for the applicant and I'm instructed by Ms Dobson.

PN3

THE COMMISSIONER: Thank you, and Mr Doherty, can you hear and see me?

PN4

MR DOHERTY: Yes, I can. Thank you, Commissioner, and I appear for the United Workers Union on behalf of some of the affected employees.

PN5

THE COMMISSIONER: Thank you, very much. Then I think we have Ms Barns. You're going to speak also on behalf of some of the other applicants?

PN6

MS BARNES: Yes. Thank you, Commissioner, Johns.

PN7

THE COMMISSIONER: Thank you, and as I understand it, none of the witnesses are required for cross-examination so we will receive their evidence. There has been prepared a court book and I think you might have been provided with a copy of that. There are tabs in the court book and what I propose to do as mark as exhibits in the proceedings, each of the documents as they appear before the tabs. So, for example, the form F1, which is behind tab 1, will be exhibit 1 in the proceeding. The form F45A which is behind tab 6, will be exhibit 6 in the proceeding.

EXHIBIT #1 FORM F1

EXHIBIT #6 FORM F45A

PN8

Looking at the index of the court book, Ms Gall, is there anything missing?

PN9

MS GALL: Yes, Commissioner. I apologise. There's one further email from One Tree to Mission Australia, of November 2018 and that had attached to it, a large spreadsheet and I've sent that this morning to your Associate, copied to Mr Doherty for United Workers Union.

PN10

THE COMMISSIONER: Yes, all right. Then what we'll do is mark as exhibit 45 in the proceedings, the email and attachments dated 2 November 2018.

EXHIBIT #45 EMAIL AND ATTACHMENTS DATED 02/11/2018

PN11

Is there anything further, Ms Gall, as a preliminary matter?

PN12

MS GALL: No, Commissioner, thank you.

PN13

THE COMMISSIONER: Mr Doherty, anything missing from the court book?

PN14

MR DOHERTY: Nothing from our perspective, thank you, Commissioner.

PN15

THE COMMISSIONER: Yes, thank you. Mr Barnes, could I come to you. Is there anything missing from the court book?

PN16

MS BARNES: Commissioner Johns, as explained earlier, prior to joining the meeting, I was going into hospital and had begun writing in response to the reply received on Friday. Half way through that I was admitted to hospital, so there are various documentations that I have access, which I do not have access to in hospital to provide to you. I can provide that material when I leave hospital, which I - - -

PN17

THE COMMISSIONER: Sorry, well, ordinarily there wouldn't be a further opportunity to file additional materials.

PN18

MS BARNES: I understand that, Commissioner Johns, and my apologies. I'm not familiar with – I'm not a lawyer. I'm not familiar with the proceedings. I'm just - - -

PN19

THE COMMISSIONER: That's all right. I was just sort of focussing at the moment on the current court book.

PN20

MS BARNES: Yes.

PN21

THE COMMISSIONER: Is there anything missing from that, from your view, your perspective?

PN22

MS BARNES: No, I believe not, thank you.

PN23

THE COMMISSIONER: All right, thank you. So, then let's come to the supplementary oral submissions. I've read the submissions which have been filed by the parties. I don't need you to read them to me. This is an opportunity to provide some short supplementary oral submissions in relation to the matters. Can I just say that having had a look at the materials, and I'm in the parties' advocate's hands in terms of what matters you want to address me on but it seems, and I'm open to be a bit persuaded otherwise, more likely than not it seems that I do need to deal with both of the entitlement issues in relation to the redundancy pay.

PN24

It seems, I would have thought, that the existence of a probationary period likely does not render the offers not suitable alternatives, but likewise, the fact that One Tree required some documentation to be provided by affected employees also likely, doesn't render the offers not acceptable alternative employment. I am very interested though in this issue of whether the non requirement on One Tree to recognise prior service for the purposes of redundancy pay means that the offers are not acceptable to new(?) employment and I want to hear about that from the parties.

PN25

Then the other issues which is that Mission Australia did not obtain the employment for the affected employees. I think, more likely than not, they did. I'm happy to be persuaded otherwise but just having reviewed the materials, it seems to me the issue that's really exercising my mind is what falls out of the fact that One Tree did not undertake to recognise prior service for the purposes of redundancy. Ms Gall, if I can come to you first, please.

PN26

MS GALL: Yes. Thank you, Commissioner. Thank you for that indication. Before I address you, Commissioner, on that key point can I just clarify, Commissioner, your preliminary view regarding the entitlement to redundancy under both the EA and the NES? I had understood you to say, Commissioner, that your preliminary view was that there was an entitlement under both the EA and the NES, and if that's the case I was proposing to address you on why there is no entitlement under the EA by reason that there's been a transfer of business.

PN27

THE COMMISSIONER: No, no, I accept that.

PN28

MS GALL: Yes. Thank you, Commissioner.

PN29

THE COMMISSIONER: Yes.

PN30

MS GALL: So just to be clear, Mission Australia's position is that there is no entitlement under the EA, but of course that means that there is an entitlement under the NES, and that is principally what Mission Australia intends to move upon today, in my submission, is that there can be no doubt that the entitlement under the EA – there is no entitlement under the EA by reason as being a transfer of business, of assets from Mission Australia to One Tree.

PN31

THE COMMISSIONER: So, do you say under the EA, the obligation under the EA sits with One Tree now?

PN32

MS GALL: No. I say that under the EA the entitlement to redundancy that was payable by Mission Australia no longer applies.

PN33

THE COMMISSIONER: No but you say it applies to One Tree?

PN34

MS GALL: Yes. Yes.

PN35

THE COMMISSIONER: But for the purpose of calculating that under the agreement, because One Tree doesn't recognise prior service it's lesser.

PN36

MS GALL: Correct. That's right.

PN37

THE COMMISSIONER: I understand.

PN38

MS GALL: Yes.

PN39

THE COMMISSIONER: That was the dispute that was before me.

PN40

MS GALL: Yes, I understand it was. All I can assist you on, Commissioner, on that is that my client was obviously not a party to that dispute and therefore has extremely limited information about it. All they've been told is that that dispute has now been resolved between the parties, as in, being resolved between One Tree and the United Workers Union. I can't assist further.

PN41

THE COMMISSIONER: Yes. Yes, so that was the dispute before me, and I found that I had the power to decide that dispute and it went all the way to the High Court – nice to be vindicated – all the way to the High Court, and then when I went to call the matter back on it seemed that the union and One Tree resolved that dispute. Mr Doherty, no doubt, won't be able to go into anything that is confidential, but is One Tree now recognising the entitlements under the agreement?

PN42

MR DOHERTY: They have not agreed to recognise that entitlement, as a general rule, no. While I wasn't involved in that dispute, myself, the issue still stands that One Tree is not undertaking to recognise continuous service for the person's redundancy in all situations. So, the same issues remains live and on foot.

PN43

THE COMMISSIONER: All right, thank you. I just might take this opportunity to note that these efforts on behalf of the UWU were initially condensed by Mr Bull(?), who was a very experienced advocate and who we tragically lost, and I want to record my sympathies to his family and to the union movement on the loss of a very, very fine advocate. All right, Ms Gall?

PN44

MS GALL: Thank you, Commissioner. Moving then on to the principal issue that you raised and are seeking assistance with respect to, being whether or not the fact that redundancy pay, service for redundancy pay is not being recognised means that the offers are not other acceptable employment, in my submission that's not a matter that falls to be considered as to whether or not the employment is other acceptable employment.

PN45

Were that otherwise then there would not be an occasion for these applications to be brought. I have addressed this briefly - - -

PN46

THE COMMISSIONER: This is in paragraphs, I think, 13 to 15 in your reply submission?

PN47

MS GALL: Yes. Yes, correct, Commissioner. To put it this way, if the terms and conditions of the offers of employment from One Tree did take into account, or rather recognise the employees' service for the purpose of redundancy pay, then the affected employees would have no entitlement to redundancy pay under the NES from Mission Australia.

PN48

In those circumstance there would be no basis at all for these applications and that flows from section 22 subsection 5 of the Fair Work Act, and section 122 subsection 2, which provides that if subsection 22(5) applies, which is relevantly the transfer of employment and the period of service for the first employer counting as service for the second employer, then the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

PN49

Given that, it can't possibly have been the legislature's intention that when considering whether an offer is other acceptable employment, a relevant consideration is whether or not service for the purposes of redundancy pay forms part of the offer.

PN50

THE COMMISSIONER: Ms Gall, I'm just not following that logic. You know, obviously if the second employer recognises the prior service for all purposes including redundancy, it will be an acceptable alternative employment. There's no doubt about it.

PN51

MS GALL: Absolutely, and there would also be no - - -

PN52

THE COMMISSIONER: But – and there'd be - - -

PN53

MS GALL: No (indistinct).

PN54

THE COMMISSIONER: That's right. But if they don't then why doesn't the question arise about whether it's acceptable alternate employment? Because it's something different.

PN55

MS GALL: It is something different but if it were to arise then it would either be always the case that if service for the purposes of redundancy pay was counted then ticked as other acceptable employment, but the Commission has to consider whether or not it is. Because the first employer is never ever making an application to vary redundancy pay because it has no obligated - - -

PN56

THE COMMISSIONER: That's right, so the only circumstances in which it arises is where – well, one of the situations in which it arises, is where the second employer doesn't recognise service for the purposes of the redundancy, and the question is, is it acceptable alternate employment. It might be found that it's not. But then it doesn't render the powers of the Commission nugatory because it doesn't follow that there would be a 100 per cent reduction. There might be a 50 per cent reduction.

PN57

It doesn't make a qualitative assessment of what it means to lose that right. I mean, is there any express authority for the proposition that recognition of service for the purposes of redundancy is not relevant to whether employment is other acceptable employment? Is there authority for that proposition?

PN58

MS GALL: I can't point to one at the moment. What I can point to is the authority for the purpose of redundancy payments which are intended to tide an employee over during the search for alternative employment and to compensate the employee from loss of credits of sick leave, long service leave and other entitlements based on length of service.

PN59

THE COMMISSIONER: Yes.

PN60

MS GALL: And that's contained in - - -

PN61

THE COMMISSIONER: But surely redundancy is another entitlement based on service.

PN62

MS GALL: No, Commissioner. The purpose of the redundancy payments are to tide the employee over during the search for alternative employment. That didn't occur here. There was no search for alternative employment. There was complete continuity of service and the only thing that wasn't recognised was prior service for the purposes of redundancy pay. For it were, we would not be before the Commission today.

PN63

THE COMMISSIONER: Yes but you didn't, and so that's why you are.

PN64

MS GALL: Quite. Quite. But if we did, then we wouldn't be before the Commission and because we didn't, that's what enlivens the Commission's power. And for that reason, and that's why my submission is that the fact that service for the purpose of redundancy pay was not recognised, is not something that takes something outside of other acceptable employment. Because if that was so then it would never be possible in an application of this kind for the first employer, Mission Australia in this case, to have obtained other acceptable employment.

PN65

THE COMMISSIONER: All right, look, I've read paragraphs 13 to 15. I hear what you say now. To be frank with you, Ms Gall, I'm non the clearer about the proposition but you've given it your best shot.

PN66

MS GALL: Commissioner, do you have any other question that I can assist you with in that regard?

PN67

THE COMMISSIONER: I'm just not following the submission. I just - - -

PN68

MS GALL: The submission is this. The reason that the application is brought by Mission Australia, because when it lost the defence contract as the end of 2018 that was a triggering event for redundancy. So Mission Australia is, under section 119, obliged to pay as at the end of 2018, the employees' redundancy pay unless there it's obtained other acceptable employment.

PN69

If, in order to be that other acceptable employment it was necessary for One Tree to have recognised that service for the purposes of redundancy pay, then Mission Australia would not have had that obligation to make redundancy pay.

PN70

THE COMMISSIONER: Yes, I'm with you up to that point. That's obvious.

PN71

MS GALL: Yes.

PN72

THE COMMISSIONER: But I don't understand how if that was the case, and it wasn't the case in this matter, it means that recognising service for the purposes of redundancy is not relevant to considering other acceptable employment. I just can't see that link.

PN73

MS GALL: The reason it's not relevant is because if it was a factor that was required to be considered by the Commission when determining if an offer is other acceptable employment then it's the case that any time one of these applications were made, the first employer, Mission Australia in this case, could never satisfy the Commission that it was other acceptable employment. If the facts are such that it's having to make this application then it follows that it could never satisfy you, Commissioner, that there was other acceptable employment because the service isn't recognised for the purposes of redundancy.

PN74

THE COMMISSIONER: That's what I'm deciding. That might well be the case.

PN75

MS GALL: Yes. In my submission it would mean that section 121(b)(i) has no real work to do in those circumstances, and that can't be the intention of the legislature. So, from a statutory construction principle that is the case, and I suppose I would observe that in none of the other cases that have considered that section that I have had regard to, has there been when they've been considering other acceptable employment and the factors, has the recognition of service for redundancy pay been a factor that's been considered.

PN76

THE COMMISSIONER: But in those cases was service for the purposes of the redundancy recognised or not by the second employer? I mean, it might not have been considered in the case because it's a factual difference to what's before me.

PN77

MS GALL: It can't have been recognised by the second employer for this reason. The application would not have needed to be brought. So, if the service was recognised then the application would not have come before the Commission.

PN78

THE COMMISSIONER: All right, Ms Gall. Thank you for your perseverance. I now understand it, thank you. I understand the argument now.

PN79

MS GALL: Thank you, Commissioner.

PN80

THE COMMISSIONER: Thank you for your perseverance.

PN81

MS GALL: Was there any other aspect on which I can assist you on, Commissioner?

PN82

THE COMMISSIONER: No but if there are other matters you wanted to address, even where I've indicated what seems to be more likely than not to be the outcome in relation to the principal issues before me, you're welcome to.

PN83

MS GALL: Yes. Perhaps I'll just deal briefly with - - -

PN84

THE COMMISSIONER: The one thing we probably should address, in the union's submissions they give an alternative for how the compensation should be reduced. You've also done the same in section (e) of your reply submissions. Can you just explain that to me? What's the thinking behind what Mission Australia is saying in terms of, if I'm against you, what the reduction should be?

PN85

MS GALL: Yes. If you are against Mission Australia in terms of reducing it to nil, the alternative that Mission Australia submits is that the amount of redundancy pay should be reduced by a period of up to 13 weeks, and that is the redundancy pay that the affected employees will accrue with One Tree. My written submissions addressed one option but it can be done in one of two ways, in my submission.

PN86

The first option is as I set out in the written submissions, and that is by looking at those employees who at the end of 2018, being the end of their employment with Mission Australia, had at least eight years' service but less than 10 years' service. They would have their redundancy pay reduced to either one week or three weeks under the NES. And for all other employees their redundancy pay would be reduced to nil under the NES.

PN87

The other option is that, Commissioner, you could look at those employees who, if their service with Mission Australia had been recognised by One Tree for the purposes of redundancy, they would have accrued more than 13 weeks' pay and they would be entitled to that additional amount. That is, those employees who had only one or two years' service with Mission Australia as at 2018 would receive either one week or three weeks redundancy pay now, and that's because they would have eight or nine years' service in total when One Tree's contract of defence is due to end in 2025.

PN88

All other employees should have their entitlements reduced to nil because they would have more than ten years' service and therefore as at 2025 they would, even if One Tree had recognised their service with Mission Australia, they would only be entitled to 12 weeks. As the Commission knows, the pay scale under the NES caps out at ten years, and it's also not linear in that an employee with seven years' service is entitled to 13 weeks pay. That moves up to 14 weeks at eight years, and then a maximum of 16 weeks for nine years but then it drops back down. So, the legislature itself contemplates a reduction in redundancy pay.

PN89

In my submission the employees, in circumstances where they have remained in the same job, on the same terms and conditions and had their redundancy calculation restart from 2019, would if they were to receive a payment from Mission Australia for their redundancy owing as at 2018, would effect get a double redundancy payment by reason that they would get a pay out as at 2018 but they've stayed in the same job, and so they would then get this second payment for another seven years' service.

PN90

If you look at the total payment then, so say – say they had seven years as at 2018, they'd get 13 weeks; then it restarts again and they get another 13 weeks' pay at the end of 2025. That means they're getting 26 weeks' redundancy pay. Now that person would have had 14 years' continuous service. Under the NES they are only entitled to 12 weeks pay. So, in my submission if the Commission were to approach it that way, the employees would in fact not be worse off. They're not losing out on anything. On the contrary.

PN91

THE COMMISSIONER: Yes. I understand the submission.

PN92

MS GALL: Yes. Thank you, Commissioner.

PN93

THE COMMISSIONER: Did you have a view about the union's alternate submission, about calculation?

PN94

MS GALL: I must confess that I wasn't quite sure exactly what, from a mathematical perspective the union was postulating, so perhaps I might deal with that in reply.

PN95

THE COMMISSIONER: Yes, yes. I am going to ask Mr Doherty to better explain it to me, as well.

PN96

MS GALL: Yes. Thank you, Commissioner. The only other thing that I might briefly touch upon now in chief and then I could otherwise deal with matters in reply, would be firstly, your Honour, the Commissioner mentioned the probation period and I note that your initial view is that that wouldn't mean it's not otherwise acceptable employment. I just wanted to note that none of the affected employees were subject to a probation period so that doesn't relevantly apply. The only employees that were subject to a probation period were those who had less than six months' service so there was no entitlement to redundancy, in any event.

PN97

THE COMMISSIONER: Right.

PN98

MS GALL: So that matter falls away. And the provision of documentation, I've again addressed that in my submissions in reply. But effectively, that documentation, one, is standard onboarding documentation that is required by childcare workers.

PN99

THE COMMISSIONER: Yes. You don't need to address that. I think it's unremarkable.

PN100

MS GALL: Thank you, Commissioner. Those are all the matters that I wish to raise in chief, noting the Commission's views regarding it being other acceptable employment save for the redundancy issue that I've addressed the Commission on. Other matters, I might deal with in reply.

PN101

THE COMMISSIONER: Yes. Thank you, Mr Gall. I've been assisted.

PN102

MS GALL: Thank you, Commissioner.

PN103

THE COMMISSIONER: So, maybe, Mr Doherty, you could start with this quantum of variation, how you've come to that math.

PN104

MR DOHERTY: Certainly. In most of the cases I've seen they are using that percentage deduction, and I think that is certainly an option that could be used. However, I was just proposing this alternative year based thing because in these circumstances we are dealing with these fixed term contracts of the incoming employer, so it's not this, like, open ended time period. It's likely to be this five years, or seven year period. So, an alternative option would be to reduce the number of weeks proportional to those years of service to compensate for the fact that these affected employees now have fairly secure employment for the term of the fixed term contract. But we would still prefer the percentage reduction, as I've seen in more cases.

PN105

THE COMMISSIONER: But if they've got relatively secure employment for the balance of the contract and a potential extension of it, why should they get anything?

PN106

MR DOHERTY: Because it's a period less than some of these people have previously worked. Also - - -

PN107

THE COMMISSIONER: But what have they really lost here? They're in the same job, they're earning the same income.

PN108

MR DOHERTY: Yes.

PN109

THE COMMISSIONER: Most of the are long serving employees. The prospect of redundancy is low. You know, they've been with One Tree for three years, with an extension for two, possibly another two. Why should these people get compensated at all? What have they lost?

PN110

MR DOHERTY: Sure. First, I would refer to the case of

PN111

De Freitas & Ryan Property Consultants which I referred to in the submissions.

PN112

THE COMMISSIONER: Yes.

PN113

MR DOHERTY: Commissioner Williams agreed to a 50 per cent reduction despite the employee being in the same position. The company was bought out by another company. So there's authority for people in the same position who haven't lost terms or conditions or continued employment. They're still entitled.

PN114

THE COMMISSIONER: What is Commissioner Williams' rationale for doing that?

PN115

MR DOHERTY: Do I have that authority? Let me just go to the list.

PN116

SPEAKER: I don't believe it's in the bundle. It's a citation in the submissions.

PN117

THE COMMISSIONER: Do you have it with you?

PN118

MR DOHERTY: I can pull it up in a moment.

PN119

THE COMMISSIONER: Because I'd like to understand the Commissioner's reasoning if you say it was like for like and there was no (indistinct).

PN120

MR DOHERTY: I would just add that in the case the employer requested the Commission to approve a 50 per cent reduction. There was not a number arrived at by the Commission itself.

PN121

THE COMMISSIONER: Right. Then it's probably not that helpful to me then.

PN122

MR DOHERTY: Sure. The other reasons that I'd add is comparing the experiences with the previous employers where the same work is worked in the same sites. In one case there was a large redundancy payment made. In other cases the incoming employer agreed to recognise that prior service with the previous employer, and even in this case Mission Australia added that to their EA agreement that they would so recognise that prior service.

PN123

Whereas in this case where there seems no difference with those previous ones but now they are seeking a different outcome, namely that reduction and I'm concerned that also sets for when this contract is re-tendered out to someone else the incoming employer, if they see that the redundancy entitlement is reduced, they go, well, why would we recognise prior service, let's just try to get out of that.

PN124

So, it's also the differences between this case and the previous employer transfer scenarios that just reiterate how insecure this contractual tender based process can be and - - -

PN125

THE COMMISSIONER: Well, it looks as though it's insecure for the entities that tender but it's pretty secure for the employees who work in the actual childcare centres.

PN126

MR DOHERTY: Firstly, that - - -

PN127

THE COMMISSIONER: How do these people – I mean, what's been the incidence of redundancy in these childcare centres?

PN128

MR DOHERTY: So there's a good question about what this redundancy entitlement is there to protect. I think, as my learned friend mentioned about that originally coming from this idea of protecting people while they seek new employment, however now we have this statutory framework that I think goes far beyond that. It's not enough that someone gets a new job and needs to have alternative, acceptable employment, which essentially means on substantially similar terms and conditions.

PN129

And then even then, once those prerequisite thresholds have been met, there's still a discretion whether it would be appropriate to then reduce that redundancy pay, so - - -

PN130

THE COMMISSIONER: But Mr Doherty, that's what I'm trying get my head around.

PN131

MR DOHERTY: Yes.

PN132

THE COMMISSIONER: You know, going back to first principles, you've got employees who a long-serving in terms of the job that they're doing, just with different employers, who in this instance Mission Australia has obtained for them employment with One Tree. They're in the same jobs, the same position, the same income, their service for annual leave, sick leave is recognised. Just as a matter of first principles, why should they get a redundancy, as well?

PN133

MR DOHERTY: It's about security, because of so many transfers and - - -

PN134

THE COMMISSIONER: But there's no evidence that these employees are in any form of insecure work.

PN135

MR DOHERTY: Sure, for the life of the contract period.

PN136

THE COMMISSIONER: Yes.

PN137

MR DOHERTY: So, I guess, yes, just these people that have been there for a long time have accrued, you know, over a decade of service and then feeling that - - -

PN138

THE COMMISSIONER: But what you get paid for long service, is long service leave.

PN139

MR DOHERTY: Yes.

PN140

THE COMMISSIONER: That's what compensates you for that loyalty. And these employees are having their service for long service leave recognised, as I understand it.

PN141

MR DOHERTY: Yes.

PN142

THE COMMISSIONER: But I'm just struggling to understand, you know, just as a matter of industrial fairness, why should they get something more? But if you can't take the submission further, that's fine. I understand.

PN143

MR DOHERTY: I also did a philosophy degree so I'm starting to think about it more from that perspective but I think we should stick to the legal submissions.

PN144

THE COMMISSIONER: Take me there.

PN145

MR DOHERTY: It's funny, I didn't really think about that, those first principles in my preparation but you're right, it's a natural, obvious first question.

PN146

THE COMMISSIONER: Yes.

PN147

MR DOHERTY: What is this seeking to protect, what is this entitlement seeking to protect.

PN148

THE COMMISSIONER: Yes.

PN149

MR DOHERTY: And I just say that the redundancy entitlement currently exists, at least under the NES, and the question is now whether it's appropriate to reduce that. And that takes a whole number of factors into consideration and only one of those is the underlying reason why redundancy entitlements existed in the first place. But there's many circumstantial factors that may be considered by the Commission.

PN150

THE COMMISSIONER: Yes, all right. Is there any other matters you wanted to address me on?

PN151

MR DOHERTY: I would just add that the non recognition of the redundancy pay, I would say is both relevant to the prerequisite question of obtaining alternative employment. But it also goes to the discretion, whether to exercise that discretion. But I think, Commissioner John, you've already recognised that it seems a relevant consideration, at least, to that threshold question and naturally it would be relevant to the exercise of discretion, as well.

PN152

THE COMMISSIONER: Yes. Yes, I'm certainly alive to that.

PN153

MR DOHERTY: I would also add on the years of service with One Tree that the current contractual period is for that five years and I accept that it's secure employment for that duration because there'd need to be a serious breach to end the contract early. However, I wouldn't accept the submission that it's highly likely that that would be extended for further years. It's certainly possibility, perhaps even likely but it's far from guaranteed. And I would suggest if years of service with One Tree were used, the five year period is the appropriate one because that's the one currently agreed to.

PN154

THE COMMISSIONER: Yes. Is there anything else?

PN155

MR DOHERTY: No. I'm just in your hands, Commissioner, if there's anything else I can speak to you further. Otherwise I rely on my written submissions.

PN156

THE COMMISSIONER: All right, I appreciate that. Thank you, Mr Doherty. Ms Barnes, are you in a position to address me? And I know that you're in a difficult situation but would you like to say something now?

PN157

MS BARNES: Thank you, Commissioner Johns. Basically the majority of points that I wish to raise, you have previously found there was (indistinct) to on legal grounds. I guess that my feeling in this is, well, notional, I guess, to some extent. Being an issue of fairness, I hoped that there would be some sort of balance between what I perceive as equity and legal principle.

PN158

THE COMMISSIONER: Sorry, can I ask you this, Ms Barnes. How long have you been working in childcare or Oshers(?) for the Department of Defence?

PN159

MS BARNES: For the Department of Defence, 16 and a half years.

PN160

THE COMMISSIONER: And how many employers have you had in those 16 years?

PN161

MS BARNES: Five.

PN162

THE COMMISSIONER: All right. So, you'd accept, wouldn't you, that despite the fact that your employer keeps changing, you've got pretty secure employment?

PN163

MS BARNES: Underneath all – under one of those employees there was an insolvency. That did result in a year's payment. I guess that's questionable whether that was secure. In terms of – with each employer there are different circumstances and in some things, as I do actually question the security of particular employers – that is, I'm talking security here and the feeling, like you get a feeling for the – what's going on behind the scenes although you're obviously never privy to that.

PN164

THE COMMISSIONER: But coming back to the fairness issue - - -

PN165

MS BARNES: Yes.

PN166

THE COMMISSIONER: In the present circumstances what have you lost, really? Why should you get a redundancy?

PN167

MS BARNES: I feel we've lost security. And I mean - - -

PN168

THE COMMISSIONER: Explain that to me. Because if I'm looking at someone who, across four or five employers across 16 years, it looks you're your work's not particularly insecure. It might be insecure for the people who hold the contracts with Defence from time to time but the workers seem to have pretty secure employment and long-serving employment, so why should they get a redundancy?

PN169

MS BARNES: Because there is an entitlement involved in workplace practices. That is - - -

PN170

THE COMMISSIONER: There won't be an entitlement if I say there's none.

PN171

MS BARNES: No, and - - -

PN172

THE COMMISSIONER: So, the legislation clearly provides for the power of the Commission to reduce the redundancy of entitlement.

PN173

MS BARNES: Yes.

PN174

THE COMMISSIONER: So the fact that the right exists, I accept the right exists. I'm being asked to reduce it.

PN175

MS BARNES: Yes.

PN176

THE COMMISSIONER: Tell me why as a matter of real fairness, what have you lost? Why shouldn't I reduce it?

PN177

MS BARNES: Because I don't see it as equitable that that entitlement was touched because it was felt it was deemed to be appropriate to be taken. One Tree have taken (indistinct) established that entitlement, but basically everything prior to One Tree assuming that role has been wiped away. Does that provide any understanding?

PN178

THE COMMISSIONER: No, no, that's all right. I guess I'm trying to sort of come at it a different way. I think if I said to most people down the pub, look, 'Kerry Barnes, she's been working for 16 years across four employers, five employers. Mission Australia got her a job with One Tree, the same position and conditions, entitlements. Should she also get a redundancy from Mission Australia?' I just reckon most people would say, 'Why would she get it? She hasn't lost anything, she hasn't lost her job, she doesn't have to go on Job Search she hasn't lost her ability to continue to accrue long service leave, sick leave, annual leave, because they've all been recognised.

PN179

MS BARNES: I can see that, yes, but - - -

PN180

THE COMMISSIONER: Why should she also get a redundancy?

PN181

MS BARNES: Again, I come back to that lack of security. Like, how can you just say, I'm not going (indistinct) through, so therefore it no longer exists? Does that mean – where I'm coming from, make sense?

PN182

THE COMMISSIONER: No, no, no, I just wanted to give you a fair opportunity to address me on it that's all.

PN183

MS BARNES: Yes, thank you, Commissioner Johns, and I really do appreciate that.

PN184

THE COMMISSIONER: Is there anything further you wanted to say?

PN185

MS BARNES: There were quite a few points but I very clearly see that this is very much a legal argument and I actually feel quite (indistinct).

PN186

THE COMMISSIONER: All right.

PN187

MS BARNES: Yes.

PN188

THE COMMISSIONER: I have had the opportunity to you're your written submissions which start at page 353 of the court book and can I thank you for preparing those, and can I thank your representation of co-workers. I have been assisted by those submissions.

PN189

MS BARNES: Thank you, sir. I also would like to recognise the work of the legal teams involved, highly impressive. And I must say that our time under Mission Australia was a pleasant employment time. So, thank you very much for hearing my voice.

PN190

THE COMMISSIONER: No, thank you. Do any of the other affected employees want to say something? You don't have to but I do want to, in fairness, provide you with an opportunity if you would like to. Ashleigh Allport(?), would you like to say anything?

PN191

MS ALLPORT: No, I'm good thank you, I'm just listening in today.

PN192

THE COMMISSIONER: Thank you. Lesley Davidson?

PN193

MS DAVIDSON: (No audible reply)

PN194

THE COMMISSIONER: Right, Robyn Meredith, anything you'd like to say?

PN195

MS MEREDITH: (No audible reply)

PN196

THE COMMISSIONER: I take that as a no, or an inability to come off mute but – all right, Ms Gall, let's come back to you.

PN197

MS GALL: Yes, thank you, Commissioner. I think the only matter that I need to reply to was Mr Doherty's submissions regarding an alternative reduction of redundancy pay if it's to nil, and as I understand Mr Doherty's submissions he put it two ways. One way was by way of a percentage reduction, and the other way as I understood it, was assuming that the employment would continue for five years rather than seven years.

PN198

Addressing firstly, a reduction by way of percentage, in my submission this case isn't an appropriate case for the Commission to approach it in that way. Firstly, the case referred to by my learned friend, as he correctly conceded, was something that was raised as an alternative by the employer; and secondly, you, Commissioner, in the Catholic Health Care case reduced the redundancy pay by a percentage and as I understood your Honour's reasoning it was to take into account some of the differences in the new employment as compared to the old employment, and that's not the case here where the exact same terms and conditions are applicable.

PN199

With respect to the time periods, in my submission seven years service, being 13 weeks redundancy, is the most appropriate. It is well recognised and it's not really disputed by the UWU that the contract for its contract term is secure, and we don't dispute the contract term is an initial three years and with two options to renew. The first option has been renewed because of the passage of time that it's taken this matter to be heard.

PN200

There is absolutely no reason to doubt, and there's no evidence to suggest that it would not be renewed for a further two years. So, in my submission the weight of the evidence is in favour of the employees accruing seven years' service and 13 weeks redundancy pay by the end of One Tree's contract with Defence.

PN201

THE COMMISSIONER: Yes. Thank you. Ms Davidson – you might want to have a look in the chat section, Ms Davidson says that she doesn't have a microphone. But she wishes to point out that any future tender contract changes to not guarantee employment for current employees of Defence, therefore if redundancies do occur in the future service it would only be recognised from 1 January, 2019. Employees with longer years of service would be obvious candidates for future redundancies. Thank you, Ms Davidson, for putting that into the chat function. Is there anything you wanted to say about that, Ms Gall?

PN202

MS GALL: The requirement to pay redundancy pay, that would be with One Tree, and Ms Barnes attached to her submission which I thank her for, and apologies, I'm just turning it up, had attached to it a letter from One Tree – yes, it's age page 362 of the court book, and One Tree states that in the second-last paragraph of that letter which is dated

PN203

9 April 2019, it states that it's saying is to either make the redundancy payment directly to our employees at that time, being at the time its contract may come to an end, or to pass funds on to a new employer so they may afford to recognises your service with One Tree, for the purpose of redundancy.

PN204

THE COMMISSIONER: Yes, all right. Anything further?

PN205

MS GALL: No, Commissioner, thank you.

PN206

THE COMMISSIONER: Can I thank all parties for their submissions and materials that they've filed in relation to the matter. It is necessary for me to reserve my decision and I do so. That means I will take some time to further consider the materials which I have before me, and also request and re-read over the transcript of today's hearing and issue my decision in due course. The Commission is adjourned. Good morning.

PN207

MS GALL: If the Commission pleases.

PN208

MS BARNES: Thank you, Commissioner.

PN209

MR DOHERTY: Thank you.

ADJOURNED INDEFINITELY [11.31 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 FORM F1............................................................................................. PN7

EXHIBIT #6 FORM F45A........................................................................................ PN7

EXHIBIT #45 EMAIL AND ATTACHMENTS DATED 02/11/2018................. PN10