FEDERAL COURT OF AUSTRALIA

CMP Manufacturing Pty Ltd v Barbieri [2018] FCA 622

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The respondent to this appeal, Mr Barbieri, is a former employee of the appellant CMP Manufacturing Pty Ltd (“CMP”). Mr Barbieri issued proceedings in the Federal Circuit Court of Australia in which various claims were made including that CMP had dismissed him from his employment in contravention of ss 340 and 352 of the Fair Work Act 2009 (Cth) (“FW Act”). He was unsuccessful in relation to those claims, but succeeded on a contractual claim that he was entitled to a retrenchment payment in the sum of $138,498.42 (less tax required to be paid by law). A claim made by Mr Barbieri under s 117 of the FW Act that he was entitled to a payment in lieu of being provided with notice of the termination of his employment was not the subject of any relief. However, the primary judge determined that if he was wrong as to the applicant’s entitlement to the retrenchment payment, he would have found the applicant to be entitled to a payment in lieu of four weeks of notice in the sum of $5,654.73. Each of those determinations is the subject of this appeal.

2    Broadly speaking, there are three challenges to the primary judge’s judgment raised by the appeal. They are whether the primary judge erred in holding that:

(i)    Mr Barbieri’s position as a Senior Buyer was redundant and pursuant to clause 11 of his contract of employment he was entitled to retrenchment pay;

(ii)    Mr Barbieri’s entitlement to retrenchment pay was not excluded because he was not offered an “alternative position” within the meaning of clause 11; and

(iii)    if he had not been entitled to retrenchment pay in accordance with clause 11, Mr Barbieri would have been entitled to be paid moneys in lieu of notice pursuant to s 117 of the FW Act.

Background facts and the primary judge’s judgment

3    Before I set out how the primary judge addressed each of those issues and why CMP asserts that the primary judge erred, it is necessary that I provide a broad outline of the factual background by reference to the findings made by the primary judge. In so far as those findings were challenged on the appeal I shall address that later.

4    The nature of CMP’s business operations was not dealt with in any detail by the primary judge, nor was it addressed on appeal. What is apparent is that CMP’s operations involved employing employees who performed clerical or administrative functions, or what was described by the primary judge as “office” or “white collar” duties, and also employees performing manual work on the factory floor, or what was described by the primary judge as “blue collar” duties.

5    CMP is the successor of various corporate entities who have, since at least 14 November 1994, operated the same business. On 14 November 1994, Mr Barbieri was first employed in that business by one of CMP’s corporate predecessors. At the time that he was first employed and subsequently, Mr Barbieri was employed in a number of what the primary judge described as “white collar positions”. In about 2009 he was promoted to the position of “Senior Buyer” and a new contract of employment relating to that position was entered into. On 1 October 2013, a further contract of employment was made between Mr Barbieri and CMP’s immediate corporate predecessor in the business. In November 2013 Mr Barbieri’s employment was “transferred” to CMP (at [8]). By that, I take his Honour to mean that Mr Barbieri and CMP agreed that the terms of the contract of 1 October 2013 be the terms of Mr Barbieri’s employment with CMP (“contract of employment”).

6    As at February 2014 Mr Barbieri was underutilised in his role as a Senior Buyer and it was agreed that he would take on “dispatch duties in the warehouse”. The primary judge categorised those duties as “office or white collar duties” (at [8]). In about November 2015, Mr Barbieri was offered either extra duties or a position in New Zealand but declined that offer (at [9] and [95]).

7    By about March 2016, CMP began to explore changing Mr Barbieri’s duties (at [96]). Meetings were held on 18 and 19 April 2016 followed by the exchange of email communications. In broad terms, what occurred was that CMP required Mr Barbieri to take on a range of duties to be shared with another employee, a Mr Petrovski (“the additional duties”). As a consequence of Mr Barbieri’s refusal to accept the additional duties, he was dismissed from his employment. The primary judge rejected (at [101]) CMP’s attempt to portray the dismissal as a resignation.

8    Of importance to the primary judge’s conclusion that under his contract of employment Mr Barbieri was entitled to a redundancy or retrenchment payment, as well as the conclusion that Mr Barbieri was not dismissed for serious misconduct and was therefore entitled to notice of termination or monies in lieu thereof, was the primary judge’s findings about the nature of the additional work that CMP wanted Mr Barbieri to take on. The primary judge characterised the bulk of those additional duties as “manual labour” (at [102]) or “manual labour of a crude nature” (at [99]) which, by reference to clause 1 of the contract of employment, did not constitute a change to Mr Barbieri’s duties that CMP was entitled to make. That was so because as the judge held at [124], a requirement that Mr Barbieri undertake “forklift driving work … [and] ordinary manual labouring work” was not within the changes permitted to be made by CMP pursuant to clause 1, as those changes did not meet the requirement in clause 1 that the change be “… consistent with your areas of career expertise and experience”.

9    The primary judge held that Mr Barbieri’s position was redundant within the meaning of clause 11 of the contract of employment. As indicated already, the primary judge also considered the terms of clause 1. Those clauses are in the following terms:

Clause 1

You are employed by the company as its Senior Buyer and report to Operations Director Magnetic of Tridonic Manufacturing Pty Ltd, although your reporting arrangements may change as notified to you.

In your role, you will perform the duties and undertake the responsibilities assigned to you and otherwise work in accordance with the directions given by your immediate manager.

During the course of your employment, the Company may make reasonable changes to your duties/responsibilities to meet the needs of the business, so long as such changes are still consistent with your areas of career expertise and experience.

Clause 11

If your position is redundant and the Company is unable to offer you or facilitate an offer of an alternative position with the Company, within the Tridonic Group of Companies or with another employer, in accordance with the company's policies and procedures, you will be eligible for a retrenchment payment which is comprised of:

(a)    2 (two) months written notice or payment in lieu (representing your full notice entitlement in a redundancy situation)

(b)    Redundancy paid in recognition of completed years of service on the basis of: (sic)

4 weeks for each completed year of service

(c)     Sick leave entitlement paid (capped at 60 days)

10    The primary judge’s approach was framed by reference to the arguments put to him by the parties. As the primary judge summarises at [118], CMP had denied that Mr Barbieri’s position as Senior Buyer was redundant and, in the alternative, it contended that he had been offered an “alternative position” within the meaning of clause 11. In that respect, CMP contended that the alternative position offered to Mr Barbieri in April 2016 was a position requiring the performance of Mr Barbieri’s existing duties as well as the additional duties that CMP were requiring of him at that time (see at [123]). It is clear that the primary judge recognised that pursuant to clause 11, for Mr Barbieri to have been entitled to a retrenchment payment, his “position” needed to be “redundant” and that no offer of an “alternative position” had been made by CMP or another employer.

11    In view of the findings the primary judge made and, read fairly and as a whole, the judge’s approach was this. As to the first question of whether as at the time of the dismissal Mr Barbieri’s position was redundant, the primary judge considered whether the position of Senior Buyer held by Mr Barbieri was redundant in the sense that it was no longer a position that CMP required “to be continued by anybody” (at [127]). In other words, the primary judge construed the phrase in clause 11 “if your position is redundant” to mean that the position occupied by Mr Barbieri was no longer a position that CMP required any employee to fulfil and on that basis was redundant.

12    The term “redundant” is not a legal term of art and what is meant by it is often dependent upon context: Amcor Ltd v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [14] (Gummow, Hayne and Heydon JJ). The usual case is where the duties which constitute a particular position are no longer required by the employer to be performed by anybody. That may arise because the need or demand for the performance of those duties has diminished to such an extent that there is no longer a need for their performance at all. Alternatively, a restructuring or re-ordering of the duties or tasks required to be performed by employees within a particular business may result in a position or positions becoming redundant because the bundle of duties that did constitute a particular position are no longer required to be performed by anybody as a bundle of duties constituting the particular position. For example, where the duties of a position are distributed to other positions making the first position redundant, or where the duties of a position are so changed or altered that a different position is created the result of which is that the original position is redundant: see R v Industrial Commission of SA; ex parte Adelaide Milk Cooperative Ltd (1977) 16 SASR 6 at 8 (Bray J) and 26-27 (Bright J); Termination Change and Redundancy Case (1984) 8 IR 34 at 55-56; Jones v Department of Energy and Minerals (1995) 60 IR 304 at 305 and 308 (Ryan J); Amcor at [43], [44], [52] [54] (Gummow, Hayne and Heydon JJ).

13    Although the primary judge found at [96] that he could not form a conclusive view on what the duties of the Senior Buyer position were, he found that those duties or, more correctly, the work associated with those duties was insufficient to fully occupy Mr Barbieri. His Honour considered that, by reason of the facility provided by clause 1 of the contract of employment for CMP to change the duties or responsibilities of Mr Barbieri’s position, that position evolved to include the dispatch duties in CMP’s warehouse, but nevertheless concluded that there was “not enough work to occupy Mr Barbieri in the totality of his duties” (at [122] and [127]). As there was insufficient work generated by the duties of the Senior Buyer position to keep Mr Barbieri occupied full-time, the primary judge concluded that CMP did not want the position continued by anyone and that consequently the position was to be characterised as redundant within the meaning of clause 11 of the contract of employment (at [127]).

14    The primary judge then turned to consider CMP’s contention that Mr Barbieri had been offered an “alternative position” in which the additional duties that CMP wanted Mr Barbieri to perform were included. CMP contended that there was no requirement under clause 11 that the “alternative position” be a suitable alternative position and that all that needed to be established was that an offer of a position was made by CMP (at [123]). The primary judge preferred Mr Barbieri’s contention that the offer made needed to be an offer of a suitable position. In that respect, the primary judge relied upon the qualified capacity of CMP to make changes to the duties of Mr Barbieri’s position under clause 1 and what the primary judge regarded as the evident absurdity of CMP’s construction of clause 11 which would exclude the retrenchment benefit payable to Mr Barbieri, on the making of any offer by any employer of any position at all (at [124]-[125]).

15    Turning then to Mr Barbieri’s claim for monies in lieu of notice of termination, as I have said, the primary judge approached that claim on the basis that it was an alternative claim available only if the claim to a retrenchment payment under the employment contract failed. That was so because the primary judge considered that the retrenchment entitlement “obviously includes a notice component” (at [130]).

16    The primary judge referred to s 117 of the FW Act which sets out the minimum period of notice that an employer must give an employee and which, by s 117(2)(b), provides for a payment in lieu of notice of termination. The primary judge also referred to s 123(1)(b) of the FW Act which operates to make an entitlement otherwise conferred by s 117 inapplicable to an employee whose employment is terminated for serious misconduct. The primary judge then dealt with CMP’s submission that by refusing to take up the additional duties required of him Mr Barbieri had abandoned his employment. The primary judge rejected that contention and further rejected that in refusing the additional duties, Mr Barbieri had engaged in conduct capable of being characterised as serious misconduct. The primary judge found that Mr Barbieri’s conduct was entirely reasonable. He held that the conduct of CMP in requiring that the additional duties be performed had been unreasonable (at [134]–[135]).

The Appeal

17    CMP’s outline of submissions included draft grounds of appeal which CMP indicated it intended to agitate on the appeal in lieu of the grounds set out in its Notice of Appeal. Those draft grounds were then reflected in an Amended Notice of Appeal which CMP sought leave to file and rely upon. Leave was not opposed and was granted. To some extent, CMP’s assertions of error in relation to factual findings made by the primary judge, made in its submissions on the hearing of the appeal and in a written submission filed after the hearing, impermissibly travelled beyond the grounds of appeal. In fairness to Mr Barbieri, I will confine my consideration of the challenges made by CMP to the primary judge’s judgment to the grounds of appeal for which leave was granted and submissions made in support of those grounds.

Was the Senior Buyer position redundant?

18    Grounds 1, 1A and 1B of the Amended Notice of Appeal are as follows:

1.    The learned trial judge erred, in finding that the Respondent was redundant, pursuant to the employment agreement dated 21 October 2013 (“Employment Contract”) whether in late March 2016, or on 19 April 2017 or at all.

1A.     Further to Ground (1) above, the learned trial judge erred, in failing to consider the whole of the requirements of clause 11 of the Employment Contract.

1B.    The learned trial judge erred, in failing to find:

a.    that the additional duties proposed to the Respondent by the Appellant were reasonable changes to his duties/ responsibilities to meet the needs of the Appellant’s business; and

b.    the additional duties proposed to the Respondent by the Appellant were consistent with the Appellant’s areas of career expertise and experience,

and in doing so, made an error in construing the Employment [Contract].

19    Those grounds lack particularity and the submissions made by CMP were wide ranging and discursive. At the heart of the submissions made by CMP in reliance upon those grounds was a contention which, if put to the primary judge at trial, was not addressed by the primary judge in his Honour’s reasons. The essence of that contention, as aided by my own reformulation, may be expressed as follows:

(i)    Mr Barbieri’s position should have been regarded by the primary judge as consisting of those duties that were extant at the time just prior to his dismissal together with the additional duties which CMP required that Mr Barbieri perform. That bundle of duties was a position that CMP wanted an employee to perform and was not a position that was therefore redundant. Nor, was the position redundant on the basis that the inclusion of the additional duties was sufficiently significant to enable the conclusion that the position was so altered that it was not being continued but being replaced by another position.

(ii)    The starting point in the consideration of whether Mr Barbieri’s position was redundant within the meaning of clause 11, is an assessment of what the contract defined to be Mr Barbieri’s position. For that, it is necessary to turn to the text of clause 1. When that is done, it is apparent that the duties of Mr Barbieri’s position were the duties of a Senior Buyer together with any additional duties that CMP was entitled to add by reason of the facility given by the final paragraph of clause 11. By that facility CMP could incorporate into the position any additional duty that constituted a reasonable change to Mr Barbieri’s extant duties or responsibilities that it required to meet its business needs so long as the change was consistent with Mr Barbieri’s areas of career expertise and experience.

(iii)    If the additional duties required of Mr Barbieri by CMP met the pre-conditions just described, then they were part of the duties of Mr Barbieri’s position. If that was so, a conclusion that Mr Barbieri’s position was redundant was not open. It was clear on the evidence that a position encompassing the additional duties was a position that CMP did require an employee, and in particular Mr Barbieri, to fulfil. Alternatively, it could not be contended that the original position was so changed as to no longer exist, because the changes made were themselves encompassed by the very definition of the original position.

20    A contention consistent with that just described does not appear from the primary judge’s reasons to have been put to the primary judge. There was no objection raised by Mr Barbieri to such a ground being relied upon on the appeal and, if it is a new ground, I consider that it is in the interests of the administration of justice that it be determined: Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [57]-[58] (Griffiths and Moshinsky JJ) and [1] (Bromberg J). It is convenient that I treat the contention as an allegation that the primary judge erred by failing to assess whether Mr Barbieri’s position was redundant in accordance with the approach I have described above.

21    In my view, however, if the question of whether Mr Barbieri’s position was redundant was assessed by reference to that approach (an approach I consider to be correct), the primary judge’s conclusion that Mr Barbieri’s position was redundant would nevertheless be the right conclusion on the findings made by the primary judge. That is because the additional duties were not duties that were capable of being duties of Mr Barbieri’s position because they did not constitute a change that satisfied the preconditions required by clause 1. If the additional duties could not be lawfully incorporated into Mr Barbieri’s position, the primary judge’s conclusion that CMP did not want that position to be continued is consistent with the factual findings made by the primary judge and should not be disturbed.

22    Although the finding was made on the question of whether an “alternative position” was offered to Mr Barbieri, the primary judge held that the additional duties did not satisfy the pre-conditions required by clause 1. At [124] the primary judge said this:

The contract expressly contemplated variation of duties within an acceptable range. On any view of the matter, the demand that the applicant undertake a forklift driving course and undertake forklift driving work, something he expressly, and in my view understandably, said he was not comfortable with, and that he perform ordinary manual labouring work, as I find it to have been, was not:    

...consistent with your areas of career expertise and experience.

23    The primary judge’s finding that the clause 1 pre-conditions were not satisfied is also reflected in the primary judge’s conclusions at [133] that Mr Barbieri was entitled to refuse the additional duties and acted reasonably in doing so (at [135]).

24    To the extent that CMP’s appeal challenges the correctness of the findings that those pre-conditions were not satisfied (in particular by ground 1B), those challenges should be rejected.

25    CMP contended that by drawing a distinction between the “white collar” work that Mr Barbieri was performing and the “blue collar” nature of the additional duties, the primary judge did not apply the actual terms of clause 1 but instead considered whether it would be “fair” for CMP to make the changes it wanted to make to Mr Barbieri’s position. There is no basis for that contention. The primary judge’s assessment of whether the clause 1 pre-conditions were satisfied was addressed to the terms of clause 1 and in particular, as the extract from [124] set out above demonstrates, whether the additional duties were consistent with Mr Barbieri’s areas of career expertise and experience.

26    It is abundantly clear that the primary judge’s reference to “white collar” work was used colloquially to refer to clerical or administrative work performed in an office or warehouse setting. That was the nature or character of the work that the primary judge held Mr Barbieri to have been performing at the time he was being required to perform the additional duties (see at [5], [8], [91] and [125]). Reading the primary judge’s judgment as a whole, it is also clear that the primary judge regarded that work to be reflective of Mr Barbieri’s career expertise and experience.

27    The primary judge was also of the view that manual work performed on the factory floor (including forklift driving) was work of a different character and, I would infer, substantially so. On that basis, the primary judge held that the additional duties were not consistent with Mr Barbieri’s career expertise and experience.

28    Why the additional duties should have been held to constitute “reasonable changes” to Mr Barbieri’s duties and responsibilities and held to be consistent with his “areas of career expertise and experience” was barely canvassed by CMP’s submissions and, in so far as it was, the submissions were unpersuasive.

29    It was said that the additional duties would have only constituted a minor part of Mr Barbieri’s job. On that issue the primary judge was left to infer the extent to which CMP would have required the future performance of the additional work. That question had to be largely assessed by reference to CMP’s intent as expressed by its managing director Mr Andonovski, who described the extent of the additional duties as “just an additional skill for emergencies and nothing to be fearful of” (at [76]). The primary judge did not accept that evidence as is apparent from [134] where the primary judge said this:

It should be noted that I have accepted Mr Barbieri's assertion that the amount of manual labour he was likely to find himself doing was greatly in excess of the now very qualified amounts asserted by the respondent.

30    The primary judge had the benefit of seeing Mr Andonovski give evidence. He expressed significant reservations about Mr Andonovski’s credibility as a witness (at [89]). That circumstance requires that I consider the nature of appellate review of findings of this kind. An appellate court will not generally interfere with findings of a trial judge based on a trial judge’s assessment of the credibility of a witness unless it considers that there are incontrovertible facts or uncontested testimony indicating that the trial judge’s conclusions are erroneous or that the decision is otherwise glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118 at [27]–[31]. CMP has not demonstrated circumstances of that kind and there is no warrant for this Court to interfere with the primary judge’s finding.

31    In any event, even if the primary judge had accepted that CMP had a valid basis for its expectation that the additional duties would only constitute a minor part of the overall work of the position, the pre-conditions in clause 1 would not have been met. First, whilst the extent of the additional duties as a proportion of the overall work of the position is relevant to the question of whether the change was “reasonable”, a limitation on the extent to which Mr Barbieri could be asked to perform those duties, does not answer the other requirement made by the clause that the duties be consistent with Mr Barbieri’s “career expertise and experience”. The primary judge specifically held that the additional duties were not consistent. CMP’s complaint that the primary judge should have held that it was likely that the additional duties would be a minor part of Mr Barbieri’s position does not impugn that finding. Second, given the qualitative difference between Mr Barbieri’s existing duties, and the additional duties (a matter to which I will return), the reasonableness requirement in clause 1 would not have been satisfied in the absence of an enforceable limitation on the extent of the additional duties. CMP’s expectation as to the foreseeable demand for Mr Barbieri to perform the additional duties would not of itself protect Mr Barbieri from being required to devote the whole of his time, or the majority of his time, to those changed duties. If what was expected did not eventuate or if CMP simply changed its intention, the absence of any limitation upon what CMP could require of Mr Barbieri meant that Mr Barbieri could have been required to devote all or most of his time to the additional duties. There was no evidence before the primary judge that the intended imposition of the additional duties was the subject of any limitation at all, let alone an enforceable limitation which may have enabled the conclusion that the change that CMP sought to make was “reasonable”.

32    I reject CMP’s contentions based on the observations made by the primary judge at [96] that he was “not able to form any conclusive view as to exactly what [Mr Barbieri] was doing” as at March 2006. It does not follow from the fact that the primary judge was unable to specify particular duties and the extent to which each of those duties occupied Mr Barbieri, that the primary judge’s conclusion that CMP did not want Mr Barbieri’s position to be performed by anybody was incorrect. As I have said, in the absence of being able to incorporate the additional duties into the position, it was clear on the findings made by the primary judge that Mr Barbieri had insufficient work to occupy him on a full-time basis and that CMP did not want the position to continue in its unaltered form.

33    For those reasons, the primary judge’s ultimate conclusion that Mr Barbieri’s position was redundant ought not be disturbed.

Was Mr Barbieri offered an “alternative position”?

34    I turn then to consider the second principal issue raised by the appeal. That issue was not expressly raised in the Amended Notice of Appeal but was the subject of extensive submissions. The appeal was conducted on the basis that it was at least inferentially raised by the grounds of appeal and (as I perceive it) in particular by ground 1A.

35    The question is whether the primary judge erred in concluding that CMP did not make Mr Barbieri “an offer of an alternative position”. It will be recalled that pursuant to clause 11 of the contract of employment, if an offer of an “alternative position” with CMP or “within the Tridonic Group of Companies or with another employer, in accordance with the company’s policies and procedures” had been made, Mr Barbieri would not have been entitled to the retrenchment payment provided for by the clause. The reference to the Tridonic Group of companies appears to be a reference to the group of companies in which CMP’s immediate corporate predecessor in the business was a part. There was no suggestion before the primary judge that an offer of an “alternative position” had been made either within the Tridonic Group of Companies or by another employer. Beyond any assistance that those terms provide for construing clause 11, that aspect of clause 11 was not relevant. Neither were there any policies and procedures in evidence to which clause 11 refers.

36    CMP’s challenge on this part of the appeal was based on an acceptance that the additional duties that CMP sought to have Mr Barbieri perform fell outside its ability to impose the change provided for by clause 1. CMP contended that, nevertheless, the additional duties were able to be taken into account as part of an offer of an alternative position, being a position the duties of which comprised Mr Barbieri’s extant duties together with the additional duties which CMP offered to Mr Barbieri at or about the time just prior to his dismissal. The primary judge appears to have proceeded on the basis that the making of such an offer could be inferred from the facts. That approach was not contested on the appeal.

37    CMP contended that the primary judge erred in concluding that no “alternative position” was offered. It said that the primary judge failed to properly construe clause 11 principally because he construed the clause as requiring a “suitable” alternative position to be offered. CMP contended that there was no warrant for the inclusion of suitability as a necessary condition to the satisfaction of clause 11 and no warrant for his Honour to have taken into account the terms of clause 1 in arriving at the conclusion that suitability was a relevant characteristic of the position offered. CMP contended that the plain words of clause 11 should have been applied and, in that respect, an “alternative position” meant any position at all. Furthermore, CMP contended that if clause 11 did require some level of suitability, acceptability, or equivalence in relation to the position offered, those elements were satisfied in relation to the position which CMP did offer to Mr Barbieri.

38    CMP’s construction of clause 11 must be rejected. There are two principal reasons. First, the contention gives the word “alternative” no work to do, and second and relatedly, the word “alternative” must be read in its context.

39    The term “alternative” qualifies the word “position”. If “alternative position” meant any position without qualification then the word “alternative” is given no work to do. It ought not be assumed without good reason, that the parties intended that the word “alternative” be ineffectual. The parties to the contract of employment must have intended the word “alternative” to be operative in qualifying or imposing some condition upon the nature of the position that may be offered to Mr Barbieri. Not only is that assumption consistent with the text but it is also consistent with the apparent purpose of the clause. Furthermore, CMP’s construction has consequences which, objectively considered, could not have been intended by the parties.

40    The principal purpose of clause 11 is to provide Mr Barbieri with compensation for the loss of his employment where his position is redundant. A further purpose underlying clause 11 is that compensation is not necessary and the expense to which CMP is to be put is not justified, where Mr Barbieri is given access to an alternative position. The offer of “an alternative position” gives rise to an exclusion. That is, Mr Barbieri is excluded from a valuable entitlement where something offered as an alternative is provided to him. That alternative must have been intended to be something of value to Mr Barbieri otherwise the principal underlying purpose of the clause, of providing Mr Barbieri with something of value to compensate him for the loss of his job, would be defeated. The word “alternative” was obviously intended to impose some limitation directed at ensuring that the compensatory purpose of the clause was not defeated. The extent and nature of that limitation needs then to be considered.

41    The word “alternative” must be read by reference to the purpose of the clause and also in the context that the subject of clause 11 is not the loss of any position but the loss of Mr Barbieri’s position. What must be offered is “an alternative” to “your position”. Taking into account the purpose and subject matter of the provision, an “alternative position” to Mr Barbieri’s existing position as contemplated by clause 11 connotes a reciprocity or an equivalence in the exchange. A reciprocal position in the context in question would be a position with the same or similar characteristics to Mr Barbieri’s existing position. That is the sense in which the word “alternative” is used in clause 11. Broadly speaking, that is the sense applied by the primary judge.

42    In coming to that conclusion, the primary judge was correct to take into account the terms of clause 1, because clause 1 essentially defined what the phrase “your position” in clause 11 meant. Clause 1 identified in broad terms the nature or character of Mr Barbieri’s existing duties. It specified that the position was characterised by the work or duties of a Senior Buyer together with such duties as might reasonably be added by Mr Barbieri’s employer taking into account Mr Barbieri’s “areas of career expertise and experience”.

43    A position bearing that character and providing for the same or similar terms and conditions of employment at the same or similar location would clearly have been an “alternative position”.

44    The primary judge did not consider characteristics such as terms and conditions of employment and location. It is clear that the new position involved no change in relation to those characteristics and that those measures favoured a conclusion that the position was an “alternative position”. However, the manual work involved in the additional duties was, as I have explained already, regarded by the primary judge as out of accord with the nature and character of Mr Barbieri’s existing position including because of Mr Barbieri’s career expertise and experience. For that reason the primary judge rejected the proposition that a position constituted by Mr Barbieri’s existing duties together with the additional duties was an “alternative position” within the meaning of clause 11. Many of the same challenges raised by CMP to that conclusion in relation the first issue I have dealt with already were repeated on this issue. They are to be rejected for reasons already addressed.

45    I would add this. An assessment of whether the work and duties of one positon is the same or similar in nature or character to the next, is likely to have both a quantitative and a qualitative dimension. So much has been held in relation to a not dissimilar analysis in the application of the principle of “major and substantial employment”: see my reasons in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64]-[71]. It is abundantly clear from the primary judge’s reasons that his Honour regarded manual work as qualitatively foreign to the work of Mr Barbieri’s existing position. The primary judge’s delineation between the “white collar” work that Mr Barbieri performed and the new “blue collar” work required of him, served to emphasise what the primary judge regarded to be work of a qualitatively different nature. In my view it was. The extent of that qualitative difference may have been sufficient of itself to warrant the conclusion that the position offered was not an “alternative position”. In circumstances where quantitatively the requirement for the performance of manual work was not likely to be insignificant (as the primary judge found) and was potentially unlimited in terms of Mr Barbieri’s contractual obligation to perform it, the primary judge’s conclusion that the position was not an “alternative position” was, with respect, not only open but clearly the correct conclusion.

46    Although at my invitation the parties made submissions in relation to Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189, the context of that case was different and ultimately the reasons given in that case were of no assistance to the construction question raised here.

47    For those reasons, this aspect of CMP’s challenge to the judgment below must be rejected.

Payment in lieu of notice

48    The two remaining grounds of appeal (1C and ID) each deal with the question of Mr Barbieri’s entitlement to the payment of money in lieu of notice. In support of ground 1C, CMP contended that it dismissed Mr Barbieri for serious misconduct. As a result he is not entitled to a payment in lieu of notice pursuant to s 117(2)(b) because of the operation of s 123(1)(b) of the FW Act. This contention was dependent upon CMP succeeding on one or more of its earlier grounds. Thus, if the additional duties fell within the changes that CMP could have made pursuant to clause 1, CMP argued that the request it had made for the performance of those additional duties was a reasonable and lawful direction and that Mr Barbieri’s failure to follow it constituted serious misconduct. As CMP has failed to overturn the primary judge’s holding that the additional duties were not within the ambit of clause 1, this contention must be rejected.

49    Alternatively, CMP contended that if the additional duties are found to be outside of the ambit of clause 1 but an offer of an “alternative position” was made, Mr Barbieri’s refusal to accept that offer amounted to a termination by him of his employment and that, accordingly, Mr Barbieri forfeited any entitlements to payment in lieu of notice. Whilst that contention travels outside of the scope of ground 1C, assuming it to be properly raised, it must also be rejected on the basis that the primary judge’s holding that no offer of an “alternative position” was made has not been disturbed.

50    Finally, ground 1D asserts that the primary judge erred by failing to account for one week of notice that had already been paid to Mr Barbieri. It is not clear to me whether that ground was pressed. Nothing was said of it other than one sentence in CMP’s written submissions that wages paid for the period 21 April 2016 to 27 April 2016 should be deducted from the amount determined by the primary judge. The basis for that submission was not put, nor is it apparent. In any event, as I have explained, no order in relation to a payment in lieu of notice was made by the primary judge.

51    For those reasons, grounds 1C and 1D are rejected.

Conclusion

52    It follows that the appeal must be dismissed. No order for costs has been sought and I assume that to be so because of the operation of s 570 of the FW Act. In the circumstances, no order for costs should be made.

Associate:

Dated:    8 May 2018