FEDERAL COURT OF AUSTRALIA

Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to the first respondent removing into this Court and quashing:

a.    the decision in Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia [2015] FWCFB 87 made on 6 March 2015;

b.    the order made on the same day (PR559739); and

c.    the order made on 10 April 2014 (PR 549581) in Australian Commercial Catering Pty Ltd v Mrs Marcelia Powell.

2.    A writ of mandamus be issued to compel the first respondent to exercise its jurisdiction to hear and determine according to law the applicant’s applications for permission to appeal and, if permission is granted, the appeals in proceeding C2014/662.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    If on the termination of employment an employee is entitled to receive redundancy pay, in certain circumstances, upon the application of the employer, the Fair Work Commission may determine that the amount be reduced. One of those circumstances is where the employer “obtains other acceptable employment for the employee”: Fair Work Act 2009 (Cth) (FW Act) s 120(1)(b)(i).

2    In this case the employer claims to have obtained “other acceptable employment” for two employees who declined to accept it. It approached the Commission seeking to have the amount of redundancy pay in both cases reduced to nil. It failed at first instance and also on appeal to the Full Bench. In this application it contends that the Full Bench fell into jurisdictional error in the approach to the question of whether the employment it had obtained was acceptable employment within the meaning of that term in s 120(1)(b)(i). For the following reasons, that contention should be accepted.

3    The employer, Australian Commercial Catering Pty Ltd (ACC), is, as its name suggests, a commercial catering company. It provides catering services to various organisations in the Melbourne metropolitan area. One of those organisations was Robert Bosch (Australia) Pty Ltd, which has a plant in Clayton where ACC operated the canteen. In 2013, however, it lost the Bosch contract. Consequently, it terminated the employment of two long serving employees, who worked there as canteen assistants — Marcelia Powell and Maria Togia — on the basis that their services were redundant. On 18 March 2014 ACC applied to the Commission to be relieved of the obligation to pay redundancy pay to both these employees by seeking a determination that the amount of the redundancy pay in each case be reduced to nil. The ACC claimed that it had offered the employees alternative employment for the same hours, at the same rate of pay, and under the same conditions as their previous employment albeit at a different location, allegedly some 15 minutes’ distance from their previous place of work. The offers were made on 23 October 2013 and the employees were required to start five days later. Both refused.

4    ACC had a measure of success before the Commission in that the Commissioner determined to reduce Ms Powell’s redundancy pay to 33% or $3,254.50. In Ms Togia’s case, however, the Commissioner dismissed the application.

5    ACC then sought permission to appeal to the Full Bench. With respect to the application relating to Ms Togia, the Full Bench (by a majority) refused permission. With respect to the application relating to Ms Powell, the Full Bench (again by a majority) granted permission and upheld the appeal. Having done so, however, the majority determined that ACC’s application to reduce her redundancy pay to nil should be dismissed and made an order dismissing the application.

6    ACC has exhausted its appeal rights but it applies to this Court under s 39B of the Judiciary Act 1903 (Cth) for the following orders:

(1)    that a writ of certiorari issue to the Commission removing into this Court and quashing:

(a)    the decision of the Full Bench; and

(b)    the orders made by the Full Bench quashing the order of the Commissioner and dismissing its application to the Commission; and

(2)    a writ of mandamus to compel the Full Bench to exercise its jurisdiction to proceed to determine ACC’s “appeal” according to law.

7    It is common ground that the relief sought is only available if ACC can establish that the majority of the Full Bench fell into jurisdictional error. ACC alleges there was such an error, the employees argue otherwise.

The relevant statutory provisions

8    The provisions relating to payment of redundancy pay appear in Pt 2-2 of the Act. Part 2-2 contains the National Employment Standards. The National Employment Standards are minimum standards of employment which cannot be displaced by agreement: s 61(1). Subdivision B of Div11 of Pt 2-2 deals with redundancy pay.

9    The entitlement to redundancy pay is given by s 119. Subsection (1) reads:

(1)    An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a)    at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)    because of the insolvency or bankruptcy of the employer.

10    The amount of redundancy pay is fixed by reference to an employee’s period of continuous service with the employer: s 119(2). In the case of an employee with at least nine years but less than 10 years’ continuous service, the amount payable is the equivalent of the total amount payable to the employee for 16 weeks.

11    Section 120 is in the following terms:

(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, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC 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.

12    The origin of s 120 lies in the decision of the Full Bench of the Conciliation and Arbitration Commission in Termination, Change and Redundancy Case (1984) 8 IR 34 to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy: see FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia (2015) 232 FCR 1 at [9]ff.

13    Appeals from decisions of the Commission are dealt with in Pt 5–1 Div 3 Subdivision E. Section 604 relevantly states:

(1)    A person who is aggrieved by a decision:

(a)    made by the FWC (other than a decision of a Full Bench or an Expert Panel);

…

may appeal the decision, with the permission of the FWC.

(2)    Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note:    Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3)    A person may appeal the decision by applying to the FWC.

14    The decision as to whether permission to appeal should be granted and, if permission be granted, the hearing of the appeal must be undertaken by a Full Bench except that the President, Vice-Presidents and Deputy Presidents directed by the President may decide whether to grant permission to appeal and, if they do grant permission, they may also hear the appeal: FW Act, s 613.

15    The Commission’s powers on an appeal are wide. Relevantly, they include: (a) the power to confirm, quash or vary the decision; and (b) the power to make a further decision in relation to the matter the subject of the appeal: FW Act, s 607(3). But the appeal is in the nature of a rehearing and those powers could only be exercised if the Full Bench was satisfied that the Commissioner had made some error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14].

The facts

16    On 16 August 2013 ACC advised its employees that it had lost its catering contract at the Bosch site with effect from 25 October 2013. At the time Ms Powell had been working at the site for nine years, Ms Togia for a little longer, both on a full-time basis. Each employee was informed that employment would cease on that date. Each was offered four options. Those options were:

(1)    continuing to work at the Bosch site with the new provider, Alliance Catering, in which case full entitlements would be paid;

(2)    finding alternative employment and resigning before 25 October 2013, in which case full entitlements would also be paid;

(3)    accepting a possible offer of an alternative position with ACC, in which case the status quo would continue, including accrual rights; or

(4)    redundancy, in which case “all entitlements would be paid … including redundancy payments as per the award”.

17    The employees were told that they had to confirm their intentions by 30 September 2013 to allow ACC to make appropriate arrangements.

18    On 11 October 2013 ACC wrote again to the two women advising them that under s 63(2)(a) of the National Employment Standards “[r]edundancy does not apply” if the employee rejects an offer of employment with the new employer on terms and conditions substantially similar to, and, considered on an overall basis no less favourable than, the employee’s terms and conditions of employment with the old employer immediately before the termination of that employment. We interpolate (although nothing turns on it) that, as the majority of the Full Bench observed, the reference to s 63 appears to be an error.

19    Ms Powell did not take up employment with the new contractor or accept ACC’s offer. She told the Commissioner (and it appears to be common ground) that the only positions that were offered by Alliance Catering were casual part–time positions for considerably fewer hours than she had been working for ACC (PN129, 136).

20    On 18 October 2013 Ms Powell and Ms Togia submitted forms provided to them by ACC management in which they applied for redundancy payments.

21    On Wednesday 23 October 2013 — two days before the contract was due to come to an end —– ACC wrote to both employees in identical terms (without alteration):

The Managing Director of ACC has personally intervene due to your length of service, experience and loyalty to the company to offer you a position with us should you decline your offer with Alliance Catering.

The position is located at our Coles – Atrium site 800 Toorak Road, Tooronga approximately 15 minutes from your current site.

Your current work hours, rate of pay and conditions will be mirrored and your job description maintained at the new site.

The position would commence Monday 28/10/2013 at your current start time. I apologise for the late notice but as you can appreciate we had to make structure changes to Coles in order to accommodate this offer for you.

Please note that if you do not take up the Alliance or ACC offer you will not be entitled to the redundancy offer.

Please confirm your intension to me at your earliest convenience so that I can accommodate Coles induction sessions for you.

22    Neither Ms Powell nor Ms Togia accepted ACC’s offer but two days later, on 25 October 2013, Ms Togia accepted an offer with Alliance Catering to work as a casual employee at the Bosch site 4½ hours a day. From what we can discern from the transcript of the evidence before the Commissioner, Ms Togia was rostered to work some 25 hours a week, rather than the 38 hours a week she (and Ms Powell) had worked for ACC (see PN254–PN268).

23    At the hearing before the Commissioner Ms Powell said that they were continually told by ACC that “there was nothing available” (PN116) and that she had signed the form on 18 October 2013 indicating that she was accepting redundancy at a time when no offer of redeployment to another site had been made (PN149–160). Ms Powell told the Commissioner that she did not accept ACC’s offer of 23 October 2013 because she and her husband only had one car between them and what with dropping off her husband at his workplace (some five minutes from Bosch), it would take her at least 35 minutes to get to Tooronga (PN173–4).

24    Ms Togia informed the Commissioner that she had repeatedly pleaded with her boss to offer her work and he had repeatedly told her that there was no job anywhere and that she should take a redundancy or accept the offer from Alliance Catering (at PN201). When asked what was wrong with ACC’s offer, Ms Togia offered substantially the same explanation as Ms Powell. She said (at PN 245 and 247):

The travel. My husband is working Monash Medical Centre. It’s just five minutes down where I work at Bosch. I’m only the driver because only two of us. I drive him down to work. By the time I get there it’s 35 minutes. It’s not worth – so I rang Nicole [presumably the Human Resources Manager with ACC] and told her about that. I can’t take that position because the travel and the way --

The decisions of the Commissioner

25    The Commissioner dismissed ACC’s application in respect of Ms Togia, finding that she should be paid her entire redundancy entitlement, but allowed the application in Ms Powell’s case, ordering that her redundancy payment be reduced. Reasons were given orally following the hearing and later incorporated by reference in the published reasons: Australian Commercial Catering v Togia [2014] FWC 2431 and Australian Commercial Catering v Powell [2014] FWC 2432.

26    In his published reasons in Togia the Commissioner stated (at [16]):

For the reasons outlined on transcript I decided that the Applicant, Ms Togia, had been advised that she had the option to accept employment with Alliance and if she did so her position would be made redundant. The Applicant had put Ms Togia on notice that redundancy payments might not be applicable if the terms and conditions were substantially similar. Ms Togia accepted the position with Alliance and commenced employment with Alliance on Monday 28 October 2013, the next working day following the termination of the Applicant’s contract with Robert Bosch. The Applicant accepts that Ms Togia was made redundant by them and is seeking to reduce the redundancy payment to zero on the grounds that they found suitable alternative employment for her. For the reasons outlined on transcript I found that the employment with Alliance was not suitable alternative employment in that the job with Alliance was a casual position whilst her position with the Applicant had been a permanent full time position and that Ms Togia was offered work for significantly fewer hours each week than had previously applied when she worked for the Respondent. The Applicant effectively advised Ms Togia that her position would be made redundant if she accepted the offer of employment with Alliance and declined the offer of alternative employment with the Applicant.

27    In finding that Ms Togia was entitled to the entirety of her redundancy pay, the Commissioner referred to the fact that Ms Togia had been advised by ACC of four options available to her, being:

    to seek to continue her employment with Alliance Catering, whereupon “full entitlements” would be paid;

    to resign before her finishing date;

    to take another position with ACC in which case her entitlements would continue to accrue; or

    if there was no position available at ACC and she was not successful in continuing with a new contractor, she would receive all her entitlements, including a redundancy payment.

28    In his ex tempore reasons the Commissioner said that he was “satisfied that what Ms Togia ha[d] done is on a reasonable reading of the letter of October 23, consistent with that letter”.

29    The Commissioner then considered whether Ms Togia’s decision to take the job with Alliance Catering was “one which would justify a reduction in the redundancy payment entitlements” (PN 395). He found that it was not, because the employment with Alliance Catering involved substantially fewer hours of work, lower income, and less security. He said it was unnecessary to make any decision about ACC’s offer of work at the Coles – Atrium site “because the fact is Ms Togia was in the letter of 23 October offered the choice and as Ms Togia, acting in accordance with that choice and therefore it would be obviously unfair to deny Ms Togia her redundancy pay in a situation where she took up the offer with Alliance consistent with what the employer had put to her” (PN 398).

30    In his published reasons in Powell the Commissioner stated:

[6]    For reasons outlined on transcript I accepted the submission of the Applicant, Australian Commercial Catering Pty Ltd, that Ms Powell was entitled to be paid an amount of redundancy because of Section 119 of the Act and that the employer had obtained other acceptable employment for the employee. For the reasons outlined on transcript I considered the offer of employment with the Applicant at another site to be other acceptable employment because it was on terms and conditions substantially similar to the pre-existing terms. I did not consider that the distance of the relocation from Clayton in Melbourne to Tooronga in Melbourne altered this judgment.

[7]    For the reasons outlined on transcript I took into account the particular reasons why the employment was not acceptable to Ms Powell and I determined that it was appropriate in all of the circumstances to reduce the amount of redundancy pay to 33% of the entitlement specified in the correspondence to Ms Powell from Australian Commercial Catering Pty Ltd dated 17 October 2013. The amount payable is $3,254.50. Given that Ms Powell’s employment with Australian Commercial Catering Pty Ltd ended on 25 October 2013 it would be inappropriate for there to be further delay in the payment of her entitlements.

31    In other words, the Commissioner found that the work offered by ACC was acceptable employment for Ms Powell but not Ms Togia. The reason for the distinction appears to be that, unlike Ms Togia, Ms Powell did not take up the offer of employment with Alliance Catering.

32    The Commissioner reduced Ms Powell’s redundancy entitlements, according to the transcript, because he weighed in the balance the inconvenience and hardship associated with the change of location against the circumstance that the employment at the Coles – Atrium site involved the same work hours, rate of pay and conditions, with no loss of skills and ongoing employment.

The appeal to the Full Bench

33    ACC filed one notice of appeal. No doubt for this reason both matters were heard together in the Full Bench (in a proceeding numbered C2014/662).

34    Relying on a passage in the joint judgment in Coal and Allied at [19] the majority characterised the decision under s 120 as a discretionary one, with the result, they observed, that an error of the type referred to in House v The King (1936) 55 CLR 499 must be established. They found such an error in relation to Ms Powell’s case because they believed that the Commissioner failed to have regard to a relevant consideration. That consideration was described at [29] of the reasons in the following way:

An employer may make a job redundant however the decision to terminate an employee’s employment occurs after the employer has determined that there are no suitable alternative positions available for the employee. At that time the employee is given notice of termination. An employer after that date, may, due to a change in circumstances, offer the employee another position and the employee may accept the position. Having given notice of termination, the employer may not unilaterally revoke the notice.

35    The majority then considered whether it was in the public interest to grant permission to appeal, observing (at [32]) (wrongly) that permission to appeal must only be granted if it is in the public interest to do so. They found that it was not in the public interest to grant permission to appeal because, despite the supposed error referred to above, they agreed with the decision of the Commissioner that the position offered by ACC to Ms Togia was not acceptable alternative employment. In contrast, in Ms Powell’s case the majority said that they considered that a substantial injustice would result if permission to appeal were not granted because Ms Powell’s circumstances were not sufficiently different to Ms Togia’s as to justify a different outcome.

36    The majority then proceeded to determine for themselves whether the position with ACC was “acceptable” other employment. On this question they said:

[34]    On 23 October 2014, Mrs Powell had been given notice of termination of their employment. Mrs Powell did not agree to the revocation of the termination.

[35]    We have had regard to change of location for Mrs Powell and the difficulties

associated with the change of location. We have also had regard to the lateness of the offer to transfer Mrs Powell.

[36]    We find that the late offer by ACC, combined with the difficulties faced by Mrs Powell in travelling to the proposed site, mean that objectively, the new position was not acceptable alternative employment.

The issues

37    In its written submissions ACC contended that, in determining that its offer of employment at the Coles – Atrium site was not “other acceptable employment” the majority reached a mistaken conclusion in respect of a jurisdictional fact and that they did so because they failed to apply an objective test when deciding whether the offer made to Ms Powell was an offer of “acceptable” employment. ACC also alleged that the majority erroneously took into account the lateness of its offer, in the absence of any temporal requirement in the Act. With respect to the decision concerning the employment provided to Ms Togia, ACC complained that “[i]n dismissing the appeal in … a peremptory manner, the majority of the Full Bench failed to consider whether [ACC]’s offer of other employment … was “other acceptable employment” for the purpose of s 120(1)(b)(i)”. ACC contended that for this reason “it is necessary to consider the decision of [the Commissioner]” and that “it is apparent on the face of his decision that [the Commissioner] failed to consider at all the offer of other employment made to [Ms Togia] at the Coles Atrium site”. As this failure was maintained by the Full Bench in its decision, ACC contends that the Full Bench fell into error.

38    On the face of things, then, the following issues arise for consideration:

(1)    Was the finding that employment at the Coles – Atrium site was not acceptable employment for Ms Powell a finding as to a jurisdictional fact? If so, was the finding erroneous?

(2)    Did the majority fail to apply the correct test?

(3)    Was the lateness of ACC’s offer irrelevant to the question of whether employment at the Coles – Atrium site was acceptable employment?

(4)    Did the majority fall into jurisdictional error in refusing permission to appeal from the decision concerning Ms Togia?

Was the provision of “acceptable employment” a jurisdictional fact?

39    In FBIS International, which concerned an application of the same kind as the present, the question in the Commission, both at first instance and before the Full Bench, was whether the applicant employer had obtained other acceptable employment for employees it had retrenched. The Full Court stated at [21]:

In the way that s 120 is drafted, the matters set out in subs (1) are, as the Full Bench in the present case recognised, jurisdictional facts for the exercise of the discretion arising under subs (2). As such, whether the applicant obtained acceptable alternative employment is now directly justiciable in this court in an application of the present kind.

40    For this reason ACC’s contention to the same effect was not challenged.

41    The Full Court’s statement in FBIS International was not supported by detailed reasons and there is nothing in the judgment to indicate that the question was the subject of any argument. As Basten JA recently observed, the jurisdictional fact label is potentially confusing: Trives v Hornsby Shire Council [2015] NSWCA 158 at [52]. With the greatest respect we doubt that the question of whether an employer obtains acceptable employment for an employee is a jurisdictional fact, properly so-called.

42    The matters set out in subs (1) are certainly pre-conditions or criteria for the exercise of the statutory power or discretion in subs (2). But that does not necessarily mean that they are jurisdictional facts. Whether or not that is so depends on whether, as a matter of statutory construction, it was intended that satisfaction of those criteria or pre-conditions be left to the administrative decision-maker or needs to be established as an objective fact. Put differently, it depends on whether, as a matter of statutory construction, it was intended that the question be left for determination in the final instance to a court on judicial review. This latter approach was favoured by Professor Aronson, who in an article entitled “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17 at 31 said that, constitutional facts aside:

the critical task is to ascertain the meaning of the relevant Act. Is it best interpreted as allowing de novo redetermination of the relevant fact in the judicial review court?

43    To properly construe the statute, it is necessary to examine both the language in which the relevant provision is cast and “the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional”: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [6] (Spigelman CJ). In an earlier judgment dealing with this question — Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [41] — his Honour pointed out:

Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

44    His Honour also observed (at [89]) that where the criterion is a matter upon which reasonable minds may differ it is less likely that Parliament intended the criterion to be an objective fact. Similarly, in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] French CJ said that “[w]hen a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court”.

45    The alleged error in FBIS International related to the finding that the employer had not obtained (acceptable) employment. In our view, while the question of whether the employer obtains employment may not call for assessment and value judgments on the part of the decision-maker, the question of whether the employment is acceptable plainly does. As it happened, the Full Bench in FBIS International was not concerned with that question. It was apparently uncontentious in that case that the employment the employer was said to have obtained was acceptable (see [22]).

46    In our opinion, when regard is had to the FW Act, the choice of the word “acceptable” to qualify the employment and the total context of the legislative scheme, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional, it is unlikely that the intention was to allow a “de novo redetermination” on judicial review of whether the employment was acceptable.

47    Be that as it may, in oral argument the proposition that the question of whether the employer had obtained acceptable employment was a question as to a jurisdictional fact was abandoned. ACC submitted that the first error the majority made was to fail to apply an objective test. By the end of the oral argument the submission was refined into the proposition that the majority impermissibly took into account Ms Powell’s personal preferences and so failed to apply themselves to the question the Act prescribed or misunderstood the nature of the opinion they had to form. If this reformulated proposition is correct, the process of reasoning would undoubtedly disclose jurisdictional error: see Coal and Allied at [31].

Did the majority fail to apply themselves to the correct question or misunderstand the opinion to be formed?

48    It is clear that the majority purported to apply an objective test to decide the question of whether the employment that was provided to Ms Powell was “acceptable”. ACC contended, however, that they did not do so or, at least, that they slid from an objective to a subjective test. For the proposition that an objective test is called for ACC relied on Clothing Trades Award 1982(1) (1990) 140 IR 123 in which a Full Bench of the Commission’s predecessor, the Australian Industrial Relations Commission, construed the words “acceptable alternative employment” which appeared in the redundancy clause of the Clothing Trades Award 1982. At first instance in that case a Commissioner had apparently concluded that “the failure of the employees to accept the employment meant that necessarily the alternative employment was unacceptable”: see Clothing Trades Award at 126. The Full Bench decided that this approach was inconsistent with the decision in Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 because, in that case, another Full Bench had decided that the test to be applied to determine whether employment is “acceptable” within the meaning of that clause was an objective one, by which it explained, “the question whether particular employment for an employee is acceptable must be determined according to objective standards”.

49    With respect, Hot Tuna does not in fact state that the test is an objective one. In that case the union certainly argued that it was but the Full Bench did not accept that argument. It stated at 231:

We have no doubt that there is an onus on the employer invoking cl 51(c) and that matters of the kind referred to by the union [pay levels, hours of work, seniority, fringe benefits, workload and speed, and job security] may be relevant in assessing the position in a particular case. We do not believe it to be necessary to make that examination in every case. Where an employee has accepted alternative employment in circumstances as those here, then in the absence of positive evidence going to the unacceptability of that employment, including unacceptable features of it, then the Commission is entitled to hold the employment as an acceptable alternative and relieve the employer of the obligation under cl 51(c) of the award.

50    The Full Bench noted the evidence was that the five employees in question had been given notice of the proposed transfer and access to management to raise any difficulties but did not seek access and that when three of them were offered a return to the company they declined. In these circumstances the Full Bench said that it was “reasonably open” to the Commissioner to conclude that the work was acceptable alternative employment within the meaning of the clause. That does not suggest an acceptance of an objective test.

51    Be that as it may, all the active parties in this case accepted that the question of whether “acceptable employment” has been obtained by an employer is to be resolved objectively. In these circumstances, we are prepared to assume, without deciding, that that is the correct approach.

52    ACC argued that in determining whether the alternative employment is “acceptable” the decision-maker must consider such factors as:

    whether the work is of a like nature;

    whether the location of the employment being offered is “not unreasonably distant”;

    whether the pay arrangements comply with award requirements;

    the hours of work;

    seniority;

    fringe benefits;

    workload and speed; and

    job security.

53    ACC relied on Clothing Trades Award and Hot Tuna where the Full Bench referred to these matters. In Clothing Trades Award at 128 the first three were said to be “obvious elements of such a standard”. In Hot Tuna the Full Bench referred to all but the first two and said that they may be relevant.

54    We accept that ordinarily factors such as these will be relevant to the determination of whether employment is “acceptable”. It is nonetheless true, as the employees submitted, that the determination is not made in a vacuum. Regard is to be had to the evidence of the particular circumstances of the employees. After all, the statute speaks of the employer obtaining acceptable employment “for the employee”. What might be acceptable employment for one employee will not necessarily be acceptable employment for another. The Full Bench recognised as much in Clothing Trades Award. To take one example, even where all other circumstances are equal, it is unlikely that employment obtained by an employer for an employee with a disability which prevents him or her from climbing stairs will be acceptable employment for that employee if the only access to the lavatories is via two flights of stairs.

55    ACC argued that the Full Bench erred in taking into account Ms Powell’s personal preference to drive her husband to work. In Clothing Trades Award the Full Bench said at 129:

What emerges from the evidence is that each individual had her own reasons for declining the alternative employment. Those reasons, including being too old; preferring to seek employment in the immediate vicinity of the company’s premises which were very near the employee’s home; preferring to seek work on “heavy” fabrics rather than light; preferring a time-work system to bonus etc cannot displace the objective test. Given the size of our cities and the common need to travel some distance to work; the fact that redundancy pay has been designed in part to tide an employee over after the loss of employment pending the attainment of another job and the fact that to reject available alternative employment which is objectively acceptable, by an election based on personal preferences is to place the right to receive full redundancy pay at risk.

56    Whether or not Ms Powell driving her husband to work was an election based on personal preferences or an economic or other necessity is a vexed question. Ms Powell did not give evidence in the Commission so the proposition that she rejected ACC’s offer because of a personal preference was not put to her. The majority said that they had had regard to the change of location and the difficulties associated with it. ACC accepted (and rightly so) that increases in travel times may be taken into account in determining whether the employment obtained by the employer is “acceptable employment for the employee” within s 120(1)(b)(i). Plainly, these factors are relevant, whether or not an objective test applies. An increase in travel times will often result in a reduction in net wages in that it will usually involve higher fuel costs or increased fares. It may also have higher personal costs in that it will reduce the amount of leisure and family time available to an employee. Cryptic though the majority’s reasons are, in all the circumstances we are not satisfied that the majority erred as alleged. It is well accepted that the reasons of administrative decision makers are “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Did the majority erroneously import a temporal requirement into s 120(1)(b)(i)? If so, was the error jurisdictional?

57    We have, however, reached a different conclusion about this question.

58    One of the two reasons the majority gave for concluding that the position at the Coles – Atrium site was not “acceptable … employment” was that the offer had been made late. It is not self-evident how this circumstance had any bearing on whether the employment was acceptable.

59    The considerations, if any, to which the majority had regard are obscure. It is possible that the observation made at [29] of their reasons was an oblique reference to the lateness of the offer. If so, then there appears to have been a misdirection. ACC submitted, without demur, that there was no evidence in either case to suggest that it had unilaterally revoked the notice of termination. ACC accepted that the employment of the two employees was terminated in circumstances prima facie entitling them to redundancy pay (s 119). The proceedings in the Commission related to the amount it should have to pay.

60    An explanation for the lateness of the offer appears in the letters to the two employees. The explanation was that “structure changes” (whatever that meant) had to be made to accommodate them. It may be unreasonable for an employer to make an offer at the eleventh hour, so to speak, particularly where the employee has already made alternative arrangements to her or his prejudice. But s 120(1)(b)(i) is not concerned with the reasonableness of the employer’s conduct. It is concerned with the acceptability of the employment. While we do not discount the possibility that in a particular case the timing of the offer may bear upon the question of whether the employment is acceptable for the employee, as we would read the words of the provision it will generally be irrelevant. The conduct of the employer will be relevant to the exercise of the discretion, however, if and when the pre-conditions for its exercise have been made out. In other words, if the employment was acceptable it was open to the Full Bench if it considered the employer had acted unreasonably in making the employment available at such a late point in time not to reduce the redundancy payments at all or only to some extent. In the present case, however, we are unable to see that the lateness of the offer was relevant to the question of whether the position at the Coles – Atrium site was acceptable employment.

Is there jurisdictional error in the majority’s decision in relation to Ms Togia?

61    The observation at [32] that permission to appeal must only be granted if it is in the public interest to do so was an error and one that went to jurisdiction. Section 604 of the FW Act allows an aggrieved person to appeal with the permission of the Commission and requires the Commission to grant permission if it is satisfied that it is in the public interest to do so, but the circumstances in which it may grant permission are not limited to situations in which the public interest requires it. This is not, however, the error of which ACC complained and, in any event, it is doubtful whether it had any practical effect.

62    The discretion whether to grant permission to appeal is a broad one. The majority refused permission to appeal because they said they agreed with the Commissioner’s decision “that the position offered by ACC to Mrs Togia was not acceptable alternative employment and as such we would make the same decision as [the Commissioner] in respect of Mrs Togia”. In the ordinary case, a finding to this effect would not signify jurisdictional error, even if the Commissioner’s decision was in fact wrong: see Coal and Allied at [32]. It is entirely within the Commission’s jurisdiction to decline to grant permission to appeal if it is of the opinion that the appeal has no merit. In the present case, however, we are satisfied that the majority fell into jurisdictional error.

63    The majority adopted the Commissioner’s decision. The problem is that the Commissioner did not decide that the position offered by ACC was not acceptable alternative employment. His findings related to the employment with Alliance Catering. There was nothing to indicate that ACC obtained that employment for Ms Togia. We accept that it is not a jurisdictional error merely to misconstrue a commissioner’s reasons (see Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union (2015) 230 FCR 565 at [158] per Katzmann J), but here (unlike in Teys) the effect of the misconstruction is that it is highly likely that the majority failed to ask itself the right question, which was whether the employment at Coles – Atrium store was acceptable employment for Ms Togia, that being the employment which ACC had obtained for her.

64    The letter ACC sent to Ms Togia (and Ms Powell for that matter) presented her with an alternative: take up its offer or the offer from Alliance Catering. Only if she did neither would she lose her redundancy payment. The letter was ambiguous at best, misleading at worst. It is entirely possible that Ms Togia was misled into accepting the Alliance Catering offer, thinking that she would not thereby jeopardise her full entitlement to redundancy pay. This circumstance would be relevant to the question of whether the discretion to reduce the redundancy amount should be exercised at all and, if so, the extent of the reduction. But in the absence of any evidence or material to indicate that ACC had obtained the Alliance Catering employment for Ms Togia it was irrelevant to the antecedent or threshold question of whether the power to determine that the amount be reduced had been enlivened.

Conclusion

65    We are satisfied that the decision of the Full Bench with respect to both Ms Powell and Ms Togia has been affected by jurisdictional error. We are not satisfied that the result would necessarily be the same regardless of those errors. Consequently, relief to the effect of that which was sought should be granted. There will be orders accordingly.

66    Having regard to the limited scope for costs orders in a matter of this kind (see FW Act, s 570), the parties agreed that, whatever the outcome, there should be no order as to costs.

67    The Court is most grateful to counsel who agreed to appear for Mrs Powell and Mrs Togia on a pro bono basis. His submissions on their behalf were of great assistance to the Court.

Associate:

Dated:    22 December 2015