Alexander Short v Immutable Pty Ltd [2023] FWC 1201

1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Short v Immutable Pty Ltd (U2022/8463) James Wakeham v Immutable Pty Ltd (U2022/8534) DEPUTY PRESIDENT DEAN CANBERRA, 7 JULY 2023 Application for an unfair dismissal remedy – whether genuine redundancy – applications dismissed. [1] This decision concerns two applications made under s.394 of the Fair Work Act 2009 by Mr Alexander Short and Mr James Wakeham (together, Applicants), alleging that they were unfairly dismissed from their employment with Immutable Pty Ltd (Immutable). [2] Mr Short and Mr Wakeham were made redundant on 27 July 2022 and 29 July 2022 respectively. Mr Short’s application was not lodged within the 21 day time limit prescribed by the Act. I heard that matter on 24 October 2022 and subsequently issued a decision and order granting an extension of time for Mr Short to file his application pursuant to s.394(2)(b)1. [3] The two applications were heard together at the request of the parties by way of a video hearing on 7 and 8 February 2023. Final written submissions were filed on 27 March 2023. [4] At the hearing Ms Julia Lee of APESMA appeared for the Applicants. Ms L Hilly of Counsel appeared with permission for Immutable. [5] Immutable contends that the employment of the Applicants was brought to an end by reason of genuine redundancy within the meaning of s.389 of the Act, a contention that was disputed by the Applicants. [6] Before considering the merits of the applications, the Commission must first determine, by virtue of s.396 of the Act, the question of whether the dismissals were genuine redundancies. [7] The following persons gave oral and written evidence for the Applicants: [2023] FWC 1201 DECISION -- 1 of 31 -- [2023] FWC 1201 2 • The Applicants • Mr Christoper Eickelman (Immutable’s former Sound Engineer and Audio Director) • Mr Mateja Simovic (APESMA’s Organiser) • Mr Daniel Serebro (Immutable’s former Senior Unity Developer) • Mr Morgan Little (Immutable’s former Technical Designer, Associate Producer and Producer) [8] The following persons gave oral and written evidence for Immutable: • Mr Justin Hulog (Chief Studio Officer) • Ms Katherine Rau (Chief People Officer) • Ms Jyllian Thibodeau (Senior Design Manager) [9] For the reasons set out below, I find that the Applicants’ dismissals were cases of genuine redundancy and as a result the Applicants were not unfairly dismissed. Brief Background [10] Immutable was established in 2018 as Fuel Games Pty Ltd until the change of name in December 2020. It commenced as a technology startup with 7 employees and launched its first online game known as Gods Unchained (GU). Immutable says it is now a global blockchain company which has approximately 300 employees worldwide working under two core business ventures, Immutable Games Studio and Immutable X Platform. [11] Since 2018 Immutable attracted various capital investments which had significantly evolved the business focus towards the Immutable X Platform. [12] Mr Short commenced employment with Immutable in July 2018 in the role of Senior Unity Developer and Mr Wakeham commenced his role as a Games Designer in June 2018. Both roles were located within the Games Studio working on GU. [13] In May 2022, Immutable’s executive management team commenced discussions around the functional and process accountabilities in the Games Studio. As a part of this, the executive management team determined that the cost base of GU exceeded sustainable revenues, and it was not operating in an efficient and sustainable manner. Because it was unprofitable, said Immutable, a decision was made to reduce the cost base, which in part included a reduction in labour. This led to a decision that the total headcount needed to be reduced by 18 roles, including 15 roles in the Games Studio. [14] The 15 roles included the roles held by the Applicants, who were advised of the termination of their employment in late July 2022. [15] The Applicants had share options that were part way through the vesting period when their employment ended. Key issues for determination -- 2 of 31 -- [2023] FWC 1201 3 [16] The Applicants contend that: a. Immutable has not demonstrated the Applicants’ positions were no longer required due to genuine changes in its operational requirements; b. They were covered by the Professional Employees Award 2020 (the PE Award) or alternatively the Miscellaneous Award 2020 (the Miscellaneous Award); c. Immutable failed to comply with the consultation obligations at clause 24 of the PE Award or alternatively clause 27 of the Miscellaneous Award; d. Immutable has not demonstrated it genuinely considered whether any redeployment opportunities were available for the Applicants within its business; and e. On the balance of probabilities, it would have been reasonable in all the circumstances for the Applicants to be redeployed within Immutable’s business. Legislative Framework [17] A person is not unfairly dismissed if the dismissal was a case of genuine redundancy (s.385(d). The term ‘genuine redundancy’ is defined in s.389 of the Act: 389 Meaning of genuine redundancy (1) A person’s dismissal was a case of genuine redundancy if: (a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. (2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer. [18] The process for selecting an individual employee for redundancy is not a relevant question as to whether the redundancy is a genuine redundancy.2 The relevant matters for consideration in determining whether the dismissal was a case of genuine redundancy can be summarised as follows: 1. Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise? -- 3 of 31 -- [2023] FWC 1201 4 2. Has the employer complied with any obligation to consult about the redundancy that arose under a modern award or enterprise agreement that applied to the employee? 3. Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise? [19] In considering the question of whether an employer ‘no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise’, it is well established that the test can be met when job functions are retained but are redistributed. [20] In Ulan Coal Mines Limited v Henry Jon Howarth and others3, the Full Bench said: “[17] It is noted that the reference in the statutory expression is to a person’s ‘job’ no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee’ (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that: ‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308) This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the ‘job’ of that employee no longer exists. [18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said: ‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’” -- 4 of 31 -- [2023] FWC 1201 5 [21] It is also well accepted that the Commission should ‘not interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable’4. In other words, the Commission’s view as to whether the restructure is a sound business decision is not a relevant factor in determining whether the redundancy is a genuine redundancy. Evidence of the Applicants Mr Short [22] Mr Short gave evidence that in his capacity as a Senior Unity Developer of Immutable, he was responsible for the architecture, design, and development of software systems for use in GU which also involved liaising with artists, designers, and other Developers. [23] He said that on 25 July 2022 he attended a 30-minute meeting with Immutable representatives during which all employees were advised that a decision had been made to restructure the Games Studio and a number of positions were to be made redundant. Employees were also advised that each employee would be individually called into a meeting with management to discuss whether their roles were impacted. [24] At the individual meeting with Mr Duarte and Ms Rau held about two hours later, he was told that Immutable had determined to make his position redundant. He was told that the decision was made based on an assessment of each Senior Unity Developer against a set of Game Engineering selection criteria. [25] Mr Short said he was then shown the selection criteria over the video call. He said he had never seen the criteria before and was not told how he compared against it, nor how anyone else was compared against it. [26] Mr Duarte and Ms Rau then told Mr Short that he had until the following day to advise whether he would like to apply for any of the vacant roles advertised by Immutable. He said the meeting lasted around 15 minutes. [27] That afternoon Ms Torres emailed Mr Short a list of vacant roles and a link to Immutable’s career page. Mr Short said that no information about the roles was provided to him, other than the position title and work area, and the description accessible from Immutable’s website for the externally advertised roles. [28] At a further meeting with Mr Duarte and Ms Rau the following day on 26 July 22, Mr Short was asked whether he wanted to apply for any other role amongst the provided list of roles. He told them he was expecting more information to be provided so he could determine if any of the roles were suitable but was advised that further information would not be provided until he had selected a role which he considered suitable. He also requested that he be provided with the information about how he was assessed against the selection criteria but that information was not provided. [29] Mr Short said he attended a final meeting with Mr Duarte and Ms Rau on 27 July 2022. At that meeting, he explained that he had sent an email to the People team the previous day -- 5 of 31 -- [2023] FWC 1201 6 requesting information about the UI Designer role but had not received any such information. He was told that he would only receive the information available on the Immutable website. After he advised that he did not have enough information and was no longer interested in applying for the role, Ms Rau confirmed his redundancy and told him that he would receive paperwork detailing this. The meeting went for approximately 5 to 10 minutes. Mr Wakeham [30] Mr Wakeham said his duties were to ‘design the rules of the game, design all of the game cards, make briefs for the artist, balance the game, and work with the engineering team to define and create the tools to make the game’. [31] In relation to his role, he gave evidence that he was initially the only Games Designer employed by Immutable, and his role was described as a ‘Technical Designer’. However, his job title has never accurately reflected the tasks and duties he was required to perform. Over the course of his employment at Immutable, he said his duties and responsibilities changed in response to the needs of the organisation. He was required to identify and perform tasks necessary to deliver the features and products promised to users. [32] He said that from September to December 2021, he led the GU ‘gameplay squad’ of 15 employees and contractors. In December 2021, he said he was asked to step down from this role to focus on game design. However, he remained involved in planning the GU’s products and features and continued to work closely with the engineering or Development team to define future engineering milestones. [33] Mr Wakeham said that from January 2022, he was effectively leading and training a team of four Game Designers: two Junior Game Designers employed directly by Immutable and two contractors. In addition, he worked on multiple GU products and features however he remained employed as a ‘Game Designer’.” [34] Mr Wakeham said he attended the individual meeting with Ms Thibodeau and Ms Torres about an hour after the all staff meeting. His evidence as to the meeting was that: “I do not remember many details from the meeting, as I was extremely shocked and upset. However, no concerns about my performance were raised. I do remember asking Ms Thibodeau and Ms Torres how Immutable was going to make the game without its employees. They could not provide an answer. Ms Thibodeau advised that there were no other suitable roles for me at the company. She advised I would be sent a list of roles that were being advertised internally as well as externally. However, the impression given to me by Ms Torres and Ms Thibodeau was that Immutable had already made the decision that there were no available roles for me, and that I would not be able to convince them that there was a suitable role. Ms Torres and Ms Thibodeau explained that another meeting would be scheduled for the following day for me to advise which of the available roles I wanted to apply for, if any. The meeting lasted no longer than 30 minutes. -- 6 of 31 -- [2023] FWC 1201 7 Later that afternoon, Ms Torres sent an email to me and other employees containing a list of available roles. The email contained no information about the roles, other than the position title and department.” [35] Mr Wakeham attended a further meeting with Ms Thibodeau and Ms Torres on 26 July 2022. As to this meeting he said: “Ms Thibodeau asked whether I wanted to apply for another role at Immutable, based on the list of positions provided. I identified a couple of roles from Ms Torres’ email, and asked Ms Thibodeau whether she thought Immutable would employ me in those positions. Ms Thibodeau responded with ‘no, I don’t think so’ or words to that effect. I clearly recall that, during the meeting, I said, ‘Are we sure there are no other options here? I really don’t want to mess this up or miss any opportunity’ or words to that effect.” [36] He was provided with a termination letter later that day. [37] Mr Wakeham said that he discovered in August 2022 that Immutable was advertising Game Designer and Creative Designer positions within the company. [38] As a result, he wrote to Ms Torres and Ms Thibodeau on 8 August 2022 requesting an explanation as to why he was not advised of these roles during the 25 and 26 July meetings. Ms Torres responded on 15 August 2022 with a list of reasons as to why the two roles were not suitable for him. Ms Torres also explained that the two roles had been shown to him when an email was sent to him on 25 July with a link to Immutable’s career page. In this regard, Mr Wakeham said that he is dyslexic which causes difficulties for him during periods of intense stress. He said: “On 25 and 26 July 2022, I was extremely stressed. I overlooked the fact that Ms Torres’ email contained a link to the Careers page and I did not think to look at the positions being advertised on the Immutable website.” Other evidence [39] Evidence was also given by Mr Eickelman, Mr Simovic, Mr Serebro and Mr Little. Much of this evidence was not directly relevant to what the Commission is required to determine as it related to matters such as the circumstances of people other than the Applicants’, the operation of the share option scheme, etc. Evidence of Immutable Mr Hulog [40] Mr Justin Hulog is Immutable’s Chief Studio Officer. He commenced this role on 1 March 2022. He gave evidence that he is responsible for setting and executing the strategy for Games Studio and reports to Mr James Ferguson, the CEO of Immutable. He also has direct oversight of each of Immutable Studio’s operating business units and their respective products including GU. [41] Mr Hulog’s evidence provides an insight into the business of Immutable, including that: -- 7 of 31 -- [2023] FWC 1201 8 a. GU is a ‘digital trading card game where players compete by trading fantasy cards. Players can play for free or play to accumulate profit using blockchain technology to trade or sell their cards in an online open marketplace. The game utilises the ImmutableX platform into its functionality for players who trade or sell for profit’. b. ImmutableX is ‘an Etherum-scaling Layer 2 platform for non-fungible tokens (NFTs) that helps enable high volumes of NFT minting at very low cost’. c. Immutable has attracted more than four series of capital investment since it was established in 2018. He said it ‘has significantly pivoted its business focus in response to the success of the Immutable X arm of its business as a result of technological development in the blockchain sector globally and Immutable’s belief of the importance of the Immutable X platform and capability in the global blockchain sector’. [42] As a member of the Executive Team, Mr Hulog gave evidence in relation to the circumstances leading to Immutable’s organisational restructure and said that: a. In early 2022 Immutable commenced a review of its operational requirements and organisational structure within the Games Studio. The review was undertaken by him with the support of senior leadership within the Games Studio. b. A review of the operational efficiency indicated that GU was underperforming in terms of profitability when compared to other parts of the business. c. Following an operational audit of GU administered by him and Mr Mandhar (Vice President – Engineering), it was determined that “the number of employees working in the engineering team on Gods Unchained were superfluous to operational requirements in order to keep the game running.” d. It was identified that the total head count needed to be reduced by approximately 18 roles in order to achieve optimal operational performance relative to resourcing. This meant reducing Immutable Games Studio by 15 roles. e. Amongst those 15 roles within the Games Studio team considered to be surplus were Senior Unity Developer and Game Designer which the Applicants performed. [43] Mr Hulog said he and Ms Rau held a meeting with all members of the Studio Leadership Team on 22 July 2022 to discuss the redundancy selection process. [44] At the all-staff meeting on 25 July 2022, Mr Hulog said he spoke about the following matters: “(a) Immutable management had decided to re-organise within Immutable Games Studio; (b) adjustments would be made to Immutable’s organisational structure in order to maximise organisational effectiveness and efficiency; -- 8 of 31 -- [2023] FWC 1201 9 (c) there would be potential redundancies where roles are no longer be required; (d) all employees impacted would be consulted in a 1:1 to discuss their specific role and the impact; (e) Immutable would share the proposed organisational changes with the impacted employees and gather any feedback for its prompt consideration regarding those changes; (f) Immutable had considered direct matches for new roles where applicable; (g) for roles where there were multiple suitable people, a selection process had been conducted using fair, clear and consistent criteria; (h) where there was no direct match and an individual had been selected in the process above, Immutable would explore suitable alternatives across the broader company; (i) that the People Operations team would begin scheduling individual consultations immediately following the meeting, and that they were also available to answer any questions. Those who were unable to speak with their People partner but needed urgent assistance could contact one of the Studio leadership team; (j) given that it was an uneasy time of uncertainty, people were encouraged to use the resources available such as the Employee Assistance Program and Modern Health (an external mental health resource provider paid for by Immutable and accessible to employees and their families).” [45] Mr Hulog said that Mr James Ferguson, co-founder of Immutable, also spoke at the meeting about the reason for the restructure and encouraged those having questions, concerns or feedback to reach out to People Operations or the Studio Leadership Team. Ms Rau [46] Ms Rau, the Chief People Officer, gave evidence that she had been in this role since January 2022. She gave evidence around the employment history of Mr Short. [47] Ms Rau’s evidence about the organisational restructure included that: a. She was not involved in Immutable’s review of its operational requirements which led to the organisational restructure. Her role was to ‘oversee selection criterial and process, consultation process and operational execution of the redundancies through people partners and people operations. This included letters and administrative requirements and liaison with employees on queries and with payroll on final payments and IT on access’. -- 9 of 31 -- [2023] FWC 1201 10 b. It was determined that the total head count needed to be reduced by approximately 18 roles in order to achieve optimal operational performance. This involved reducing 15 roles from Immutable Games Studio and three roles from Talent Acquisition. c. A total of 18 roles were made redundant, which represented about 6.4% of Immutable’s overall workforce at the time. d. The selection criteria for the engineering division was developed by Ms Torres in People Operations under her supervision and in consultation with Mr Duarte. e. She was informed that the selection criteria was based upon employee performance, incorporating both technical skills and border skills, and given that most employees were strong technical performers, the scorecard did not rank employees solely on that criterion. f. The selection criteria were then inputted into a selection scorecard which was used to assess each of the employees in the areas where a reduction in staff numbers was required. The scoring was done by Ms Torres and the manager for each affected employee based on the employee’s work as demonstrated throughout their tenure at Immutable g. Once Ms Torres and the manager had applied the selection criteria to the scorecard, she reviewed the rankings and the decisions that had been made. On this review, she was satisfied that Ms Torres and the respective managers were best placed to have applied the criteria and she was satisfied that the criteria had been applied fairly. h. An employee's duration of tenure had no bearing on their selection for a redundancy. No other criteria other than that set out in the scorecard was used to determine which employees would be selected for the redundancy process. i. Ms Torres and Mr Duarte gave Mr Short the lowest ranking on the Senior Unity Developer role scorecard. j. In terms of seeking re-deployment for the affected employees, Ms Torres and their respective managers considered whether there were suitable roles for each of them. k. She reviewed the assessments made by Ms Torres and the respective managers and was satisfied based on Ms Torres’ recommendation that there was no suitable alternative position available for Mr Short. l. She disagreed with Ms Simovic’s statement that Immutable did not redeploy any individuals and asserted that one employee was redeployed into a revenue position. -- 10 of 31 -- [2023] FWC 1201 11 m. She led a meeting with Mr Hulog on 22 July 2022, attended by all members of the Studio Leadership Team including Mr Duarte and Ms Thibodeau as the respective managers of GU Engineering and Design. She said that the purpose of the meeting was to brief all those on the outcome of the redundancy selection process, and the consultation process that was about to commence. She discussed the process that would be undertaken including the initial group consultation on Monday 25 July 2022, individual meetings with Managers/People Partners and the key messages for managers to convey in the meetings, as well as the process for sending open roles for consideration and booking a follow up meeting with impacted individuals to discuss their feedback on open roles. n. She was not present at the all-staff meeting on 25 July 2022 but assisted Mr Hulog and Mr Ferguson with preparing their speaking notes. o. After the all-staff meeting she and Ms Torres, along with the respective managers and supervisors, attended the individual meetings with all those affected employees according to a pre-prepared schedule. p. Each consultation meeting was scheduled to be attended by the affected employee, the relevant head of department, and a representative from People Operations. The relevant heads of department and representatives from People Operations had been briefed with speaking notes that she had prepared to ensure that consistent messaging was provided to all affected employees. At the conclusion of each consultation meeting the attending representative from People Operations logged a record of the discussion in a shared Google document titled ‘July 2022 Reorg Status Tracker’. [48] Ms Rau gave evidence that she attended the individual meeting with Mr Short and Mr Duarte on 25 July 2022. The speaking notes prepared for the meeting with Mr Short was attached to Ms Rau’s statement which reads: “Hi <Alex> This is a difficult discussion. The purpose of the conversation today is to inform you that as a result of the Studio restructure, there is an impact to your current role of Sr. Unity Developer. We would like to show you the current org structure before the reorg takes effect in a few weeks time, and also show you the roles that remain in the org and the changed roles post the restructure. – share screen – As you'll see, where we've previously had 6 roles of which your role is one of these, in the new org we have a requirement for 2. This is a decision that has been taken after much consideration. -- 11 of 31 -- [2023] FWC 1201 12 As a result, we have undertaken a process of selection against a series of criteria for the role in order to determine who we will be offering the available roles to. We will show you the criteria we are using now and happy to provide you with a copy should you request this. – criteria slide – We believe this criteria to be fair and consistent in its application. Unfortunately, after undertaking the selection process against our chosen criteria, we regret to inform you that we will not be offering you one of the available roles in the new org at this time. We wanted to therefore inform you that unless we are able to seek a suitable alternative in the company, that we will be providing you with 4 weeks notice of your role being redundant at Immutable. We have done an initial search of the open positions across the company and unfortunately, from this initial search we cannot identify a suitable alternative role available at this time. Having said this, we would like you to consider whether you believe any roles are suitable and also provide us with any other feedback on the process and decisions that we are undertaking. We would ask that you come back to us in 24 hours after looking at the open roles (we will send you a link to these on your email) and you can also come back and ask any questions you may have about these, noting that both you and the company do need to feel that a particular role could be a suitable alternative based on your skills and experience. As mentioned, if a suitable alternative option can be identified we will make steps to see if it is viable. If we agree that one cannot be found, we will formalize the notice of your redundancy from Immutable and send you the associated documentation. If you would like to know what your redundancy entitlement would be, we will talk to you about this today also. <refer to calc - people partner only> In relation to the notice period of 4 weeks, we would also not require you to serve this notice and we will pay this to you in lieu. This is in addition to the redundancy payment being made to you of 6 weeks based on your length of service being 2 years and 3 months. We would ask that you are available for handover with your nominated person being me in the coming few days. We will also remove access once we finalize any handover. We have also decided to revoke your access to critical services, but will retain your access to Slack in the meantime so that we can work through your handover. We appreciate that this is incredibly difficult news to receive and we would like to extend EAP, Modern Health coaching or any other support you need that we feel -- 12 of 31 -- [2023] FWC 1201 13 we can do for you. We will also be offering outplacement support as part of the redundancy package. In the meantime, please take some time out of work today to digest this discussion and if you need assistance getting home we can arrange a cab or uber. Do you have any questions?” [49] Ms Rau said that the meeting was scheduled for 45 minutes but she recalled it concluded earlier than that. [50] Ms Rau said that subsequent to the meeting Ms Torres sent an email with the subject line ‘Follow Up: Open Roles at Immutable’ to all affected employees and copied to her. The email included a list of new roles as well as a hyperlink to the Immutable Career Page containing information of all the open roles that were available across Immutable. [51] She attended the second meeting with Mr Short and Mr Duarte on 26 July 2022. Mr Short indicated that he might be interested in applying for the Senior UI Designer for GU. [52] She recalled Mr Short asking about detailed scorecards for every role advertised and he was told that they did not provide detailed scorecards for every role. Mr Short was told that if he identified a specific suitable role then details would be provided. She said: “We did not refuse a request for a specific scorecard. Mr Short did not dispute this further, and I do not recall that he asked for the scorecard in writing.” [53] Ms Rau did not respond to Mr Short’s email of 26 July but attended a third meeting with him and Mr Duarte on 27 July 2022. During that meeting Mr Short advised that he no longer wished to apply for the UI Designer role and did not identify any other alternative roles. [54] As to Mr Short’s claim that he was not interested in the alternative role because he did not have enough information, Ms Rau said: “I dispute this, as Mr Short did not raise this, had only enquired about the role less than 24 hours before and subsequently told us he was not interested.” [55] Ms Rau also gave evidence that she was aware there was consideration as to whether Mr Short was suitable for the role of UI Designer. The key skills criteria for this role were demonstrated proficiency and experience creating UI assets for games; comfort using at least one creative app, ideally Figma; detail orientation in visual design; experience ensuring assets align with brand direction, specifications of design system, and intent of the stakeholder. The role was for someone who would grow the UI function within the organisation. She said she was also aware that the UI/UX team was looking for someone more senior in UI design than Mr Short, and that as an engineer, Mr Short had not been working in this capacity and in his work history had not focused on UI. He was therefore not considered to be suitable for this role. This view was supported by Ms Thibodeau. Ms Thibodeau -- 13 of 31 -- [2023] FWC 1201 14 [56] Ms Thibodeau is the Senior Designer Manager and has been employed with Immutable since September 2019. In her role as the supervisor of all employees working in the GU Design Team Ms Thibodeau described her responsibility as ‘overseeing design functions, finding ways to facilitate work each sub-group in the Gods Unchained Design Studio is required to perform, working with other managers to allocate resources and mentorship of people on the team to help them grow as designers’. [57] Ms Thibodeau did not agree with Mr Wakeham’s claim that there was ambiguity about the role he was performing. In her capacity as Mr Wakeham’s supervisor, her evidence about his role was that: “When Mr Wakeham commenced in his role as Game Designer, I am aware that he was the only Game Designer on the Gods Unchained title, which put him in a de facto role of leadership over the domain of game design. However, by the time that I came to the team in January 2022, there were two other Game Designers in the team who were at a junior level. Mr Wakeham did not directly supervise these two Junior Game Designers and they did not report to him. During my discussions with Mr Wakeham, he had told me he had not been interested in acting in a more supervisory relationship with the Junior Game Designers; instead, he preferred to remain as an individual contributor and I respected his decision. In my role, I lead the team and have daily discussions with the Game Designers and squad Producers (who are primarily responsible for day-to-day task management and resource allocation) on a regular basis regarding their duties. While Mr Wakeham was a respected and influential contributor, I do not consider that Mr Wakeham 'effectively led' the team, or that the team was required to self-organise.” Mr Wakeham was responsible for proposing and validating designs for the cards, gameplay mechanics, and themes for each expansion of the game. His contribution as an experienced member of the team was considerable, but this was done in partnership with the other Game Designers, Narrative Designers, User Experience Designers, Technical Designers, and Marketing Team, and provisional to the direction and approval of Gods Unchained leadership team. This is not a programming or engineering role (which would be handled by Technical Designers and an Engineering Team), but rather, Mr Wakeham was responsible for a particular area of the creative design of the game, ie: creating content and rules for how the game and the world within the game work. To perform his role, Mr Wakeham required specialised knowledge of how trading card games worked. This can be gained from previous experience designing trading card games, as well as from knowledge gained by playing trading card games. I am aware that Mr Wakeham had been a games designer before he commenced at Immutable, and his experience was useful in his role as Game Designer. Mr Wakeham was skilled and had a deep knowledge of how trading card games work, and what is required to put them together. I do not consider that Mr Wakeham required any tertiary qualifications (be it a degree of a diploma or any formal qualification) to perform his role as Game Designer, and I would not require someone in his position to have any tertiary qualifications. I do not hold any formal -- 14 of 31 -- [2023] FWC 1201 15 qualifications relevant to game design as they are not strictly necessary to do this kind of work.” [58] Her evidence concerning the redundancy was that: a. She first heard about the organisational restructure about a week before the all staff meeting on 25 July 2022. b. She was asked by Mr Hulog about the roles in the GU Design Team that were absolutely essential to the continued running of the game. c. She understood that she was the decision maker about who would be selected from her team to participate in the redundancy process. She said that Mr Hulog said that Immutable needed to reduce the headcount in her team but it was he decision, in consultation with Mr Hulog, which positions would be made redundant based on what she needed to make the game. [59] In reaching her decision that Mr Wakeham’s Game Designer role would be made redundant, Ms Thibodeau’s evidence was that: “22. Ultimately, I considered each role in my team. At the time, there were 15 staff members of the team made up of Game Designers (define the rules and gameplay loops), User Experience Designers (define interaction flows and systems), User Interface Designers (define the look and feel of gameplay controls), Narrative Designers (define the direction of the story, characters, and game world), Technical Designers (build each new card in the game engine and create technical tooling for designers), and a Balance Designer (evaluate new cards to ensure they aren’t over- or under-powered within our larger library of content). 23. Ultimately, I considered that besides Game Designers, most of the other areas had no more than two people, so if we lost one of them, there would be one person shouldering the whole burden or create an inappropriate bottleneck in development. In Game Design, there were three employees, being Mr Wakeham and two junior Game Designers. 24. I considered my options were either to keep the Senior Designer role that was held by Mr Wakeham and lose both Junior Game Designer roles, or keep both Junior Game Designer roles and lose the Senior Designer role. I ultimately considered that in order to keep the Gods Unchained title running, the best option was to keep both Junior Game Designers. This was because the workload could be spread between the remaining people (who were growing quickly with their development, and each covered a unique area of skills and focus) or re- allocated to other non-Designer roles. 25. Because there was only one Senior Games Designer position and Mr Wakeham was the only employee performing that position I didn’t need to use any selection criteria or scorecard such as that used by other areas such as the -- 15 of 31 -- [2023] FWC 1201 16 engineering team to decide which employees would be allocated to the remaining positions where there were more employees than positions. 26. During the restructure, as well as Mr Wakeham's position, the Design team also lost one of the Narrative Designers and our only Balance Designer. I made these decisions, in consultation with Mr Hulog. 27. With respect to Mr Wakeham's tenure, when making the decision regarding redundancy I took into account that Mr Wakeham had been at Immutable from early on, and part of its success was due to his contribution. I also took into account the domain knowledge he had accumulated, which was important for a technical perspective. However, I ultimately considered that Immutable was best served by keeping the other two Junior Games Designer roles, for the reasons given above. This was a difficult decision for me. 28. I did not consider Mr Wakeham's share options when making the decision to make his role redundant, and at no point was I instructed that this should influence the decision. Further, at no point did I have access to employee files that would give me information on the share options held by Mr Wakeham, or any other employee.” [60] Ms Thisbodeau attended the consultation meeting with Ms Torres and Mr Wakeham on 25 July 2022. She said: “42. It was a difficult meeting. It appeared to me as though he was going through the ‘stages of grief’ in the meeting. He asked whether there was anything he could do to change our mind. I said that we can look at all of the alternative roles. I did not say anything to convey that there were no suitable roles. That was not where I was at in my decision-making process. He asked if there was any other suitable role he could be moved into. I said that I had looked and I hadn’t seen anything that was an exact match, but that he was welcome to go and look into it and come back with anything he could see, and that I could help him through this process if he wished. 43. I remember Mr Wakeham asking me how Immutable would make the game without employees. I was struck by this question as it was very confrontational. The answer to it was that we would continue to make the games as we always had by applying the resources available to us to the task at hand. However, given it was such a confrontational and unexpected question I did not consider it productive to the discussions to give a direct and specifically-detailed answer. 44. The meeting ended with us telling Mr Wakeham that a list of available roles would be circulated and that we could meet again the next day to discuss those roles.” [61] She was asked by Mr Wakeham the following day to have more time to consider the alternative roles. She then had a conversation with him over Slack during which he was -- 16 of 31 -- [2023] FWC 1201 17 asked why he needed more time. Mr Wakeham said that he was having difficulty following what was going on and needed things to be put in writing. [62] In terms of the redeployment options for Mr Wakeham, Ms Thisbodeau explained that the two advertised roles in the design team with Guild of Guardians, namely Economy Designer and Creative Designer, were not suitable for Mr Wakeham because: “30. The Economy Designer role is a very specialized role which is highly quantitative, focused primarily on live ops and economy balance to maintain a sustainable economy. The role required strong quantitative aptitude and experience in financial, statistical and mathematical modelling. People who work in this role typical have backgrounds in micro- and macro- economics,versus game design. 31. The Creative Designer role was also a very specialized role that required things like completely re-working the lore of the game. It was a role suited to someone who is a writer or Narrative Designer by trade. This would have been a vocational sidestep for Mr Wakeham. He did not have the vocational experience needed for the role, including providing art and audio direction for a franchise. 32. Additionally, Guild of Guardians is primarily a roleplay game, and is not a trading card game, which reflected most of Mr Wakeham's experience. I am aware that the business was looking for candidates with mobile roleplay game experience to fill the Guild of Guardians roles. 33. On review between myself and the hiring managers for each of those roles, Mr Wakeham did not have the skillset to perform either of those positions. This helped me form my opinion that these were not strong options for Mr Wakeham. But I wanted his input and for him to examine the roles before any final decision was made.” [63] Ms Thibodeau said that Mr Wakeham also asked about the GU Senior Product Manager role which was levelled at IC4. That role was not within Mr Wakeham’s skillset because he was levelled at IC3 and the hiring manager was looking for proficient and demonstrated craft expertise in senior product management. [64] Ms Thibodeau said that there have been no new hires in the GU Design Studio since the redundancy process. [65] She gave evidence that she has been through eight redundancy processes at various previous employers since 2007. According to her, the redundancy process undertaken by Immutable was fairly standard based on her experience. Were the Applicant’s positions no longer required because of changes in the operational requirements of Immutable? [66] Having considered the evidence and the submissions, I am satisfied and find that Immutable made a decision to remove 18 positions from its organisational structure. The reason -- 17 of 31 -- [2023] FWC 1201 18 for the restructure and subsequent redundancy was communicated to the Applicants in the all- staff meeting on 25 July 2022 and in their individual meetings held later that day. [67] During the individual meetings, the Applicants were informed that they were required to advise whether they wished to apply for an alternative role the following day. [68] The relevant operational requirement in this case was a business decision to reduce costs of GU. I accept the evidence of Mr Hulog that GU was not profitable. Mr Hulog was extensively cross examined about his issue and clearly distinguished between profitability and revenue. I accept his evidence in this regard. [69] I am satisfied that Immutable no longer required the jobs performed by the Applicant’s to be performed because of changes in its operational requirements. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement? [70] It is first necessary to determine whether Immutable has an obligation to consult under the provisions of a modern award or enterprise agreement. [71] It is common ground that no enterprise agreement applies to the Applicants’ employment. [72] The Applicants contend that they are either covered by the Professional Employees Award 2020 (PE Award) or by the Miscellaneous Award 2020 (Miscellaneous Award). Immutable disputes this and says that the Applicants are award free. [73] The Applicants submit that: “PE Award 19. The PE Award is an industry and occupational award expressed to cover ‘employers throughout Australia principally engaged in the information technology industry … and their employees who are covered by the classifications in Schedule A - Classification Structure and Definitions. 20. The Respondent accepts that the employer is principally engaged in the information technology industry. In January 2023, the Full Bench of the FWC in the matter of Variation of Professional Employees Award 2020 did not question the coverage of the PE Award for employees in the games sector. 21. The relevant definitions at clause 2.3 of the PE Award are as follows: Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires: -- 18 of 31 -- [2023] FWC 1201 19 (a) that they have graduated with a university degree, with a science or information technology major (3, 4 or 5 year course) and had 4 years’ experience on professional information technology duties since graduating; or (b) that they, not having so graduated, have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society plus a further 4 years’ experience on professional information technology duties. Graduate information technology employee means a person who: (a) holds a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or (b) has sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society. Professional information technology duties means duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to: (a) hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or (b) have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society (emphasis added). Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term professional information technology employee includes graduate information technology employee and experienced information technology employee as defined. 22. The introductory sentence to Schedule A of the PE Award provides that the classifications apply ‘[f]or employment involving the performance of professional duties’. 23. In its recent PE Award variation decision, the Full Bench of the FWC held that the ‘principal purpose test’ is ‘singularly ill-suited to determine the application of [the classification at Schedule A]. The FWC has confirmed that: [W]hen read with the relevant definitions, being a “Graduate engineer”, “Graduate information technology employee” and “Qualified scientist” does not need to be the principal purpose of an employee’s employment in order for the employee to fall -- 19 of 31 -- [2023] FWC 1201 20 within Level 1. Rather, it appears to be sufficient that this is a purpose, or part of the purpose of the employment. 24. The Full Bench has recommended that Schedule A of the PE Award be amended to clarify that the classifications have the function of determining the level of an employee covered be the PE Award, rather than determining the award coverage of the employee: Once a person is engaged to perform ‘professional information technology duties’ as part of their role, they will necessarily fall within one of the classifications. 25. Both Mr Short and Mr Wakeham agreed that the Respondent did not require them to have tertiary qualifications in order for them to successfully apply for their roles. The uncontested evidence provided on behalf of both the Applicants and the Respondent indicates that tertiary qualifications are not required in order for employees working in the information technology industry, and specifically the games industry, to obtain and perform highly skilled roles. 26. However, during the course of their employment with the Respondent, both Mr Short and Mr Wakeham were employed to perform a range of information technology duties requiring a high degree of skill, independence, and knowledge. As stated by the Respondent’s founders, the company’s earliest employees or contractors were recruited as gaming and designer experts to assist them in building GU. The Applicants were employed in skilled, but not managerial, information technology positions. 27. As outlined above, in order to demonstrate that they are covered by the PE Award, it is only necessary for the Applicants to show that part of their roles required the performance of ‘professional information technology duties’ i.e., duties that require a person to ‘have sufficient qualifications and experience to be a Certified Professional’ of the Australian Computer Society (ACS) to adequately discharge those duties. 28. The ‘normal pathway’ taken by information and communication technology (ICT) practitioners to successfully apply for Certified Professional status with the ACS and to maintain the certification is as follows: • The information and communication technology (ICT) practitioner holds a relevant qualification from a university or technical institution. • In addition to or in lieu of a relevant qualification, the practitioner demonstrates that they have a number of years of experience in an ICT-related field. For example, a practitioner with a university degree accredited by the ACS must have an additional 3 years of experience to be considered for certification as a Certified Practitioner. An ICT practitioner with an ICT-related diploma must have an additional 5 years’ experience. • The practitioner can demonstrate in-depth competence in at least one specialism at Skills for the Information Age (SFIA) Level 5. The SFIA Framework is global -- 20 of 31 -- [2023] FWC 1201 21 skills and competency framework designed to assist professionals working in the ICT sector to articulate common skills and competencies across the industry. For practitioners with an ICT-related diploma, the practitioner must ordinarily demonstrate that they have at least two years of experience in this specialism at SFIA Level 5, and two years of experience at SFIA Level 4. • The practitioner can demonstrate a breadth of knowledge of ICT. • The practitioner has an understanding of, and commitment to, the ACS codes and standards. • The practitioner undertakes 30 hours of continual professional development each year. 29. There are more than 870,000 Australians working in the technology sector. However, according to the ACS website, the number of information technology professionals certified under the ACS certification scheme is approximately 1,500. 30. An ACS Certified Professional is required to adhere to the Code of Conduct and complete the requisite number of hours of professional development once they have been certified. A professional information technology employee is not required to undertake professional development in order to demonstrate coverage of the PE Award. 31. The Applicants note that an employee with a university degree accredited by the ACS is considered to be covered by the PE Award if, even as only part of their employment, they perform any duties the adequate discharge of which requires the employee to hold those qualifications. No further experience in an ICT-related field is necessary for the employee to be covered by the PE Award. 32. Mr Short holds an Advanced Diploma of Professional Game Development, Software Development from the Academy of Interactive Entertainment. In addition, Mr Short: • has 15 years of programming experience; • has 10 years of professional game development experience; and • is a senior level programming specialist in Unity and C#. 33. Mr Wakeham holds an Advanced Diploma of Professional Game Development (Programming), Computer Games and Programming Skills and a Certificate II in Game Programming Foundations using C#, both from the Academy of Interactive Entertainment. In addition, Mr Wakeham has 11 years of experience in the information technology industry, which includes seven years of experience in the games industry. -- 21 of 31 -- [2023] FWC 1201 22 34. Mr Short and Mr Wakeham have completed self-assessments against the relevant SFIA skills and competencies using the SFIA Framework. In cross-examination, Mr Wakeham conceded that he failed to correctly match his relevant skills and responsibilities to the SFIA skill level descriptions. However, upon re-examination, Mr Wakeham clarified that he had assessed his relevant skills against the generic SFIA levels of responsibility. The ‘levels of responsibility and accountability’ provide ‘the underlying structure of the SFIA Framework’ and ‘ensure that the definitions of professional skills are defined in a way that makes their different levels recognisably distinct and aligned to the levels of responsibility’. The Applicants assert the totality of their evidence demonstrates that: (a) Mr Short and Mr Wakeham were required to utilise skills in at least one specialisation area at an SFIA Level 5 skill level or above whilst employed by the Respondent (noting that, in order to be an ACS Certified Professional, an ICT practitioner is only required to demonstrate one specialism at SFIA Level 5); and (b) Mr Short and Mr Wakeham have a breadth of knowledge of ICT. 35. The Applicants assert that at least a portion of the duties they undertook whilst employed by the Respondent required them to have qualifications and experience recognised as those of Certified Professionals, as per the ACS Certification Guidelines and by reference to the SFIA Framework. 36. The Applicants submit that they were covered by the PE Award.” Miscellaneous Award 37. The coverage provision at clause 4 of the Miscellaneous Award provides, relevantly: 4.1 Subject to clauses 4.2,4.3,4.4 and 4.5 this award covers employers throughout Australia and their employees in the classifications listed in clause 15—Minimum rates who are not covered by any other modern award. 4.2 The award does not cover managerial employees and professional employees such as … information technology specialists. 4.3 The award does not cover employees excluded from award coverage by the Act. … 38. An employee classified at Level 4 under clause 15 of the Miscellaneous Award has ‘advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee’. 39. Employees are excluded from award coverage by section 143(7) of the FWC, which provides: -- 22 of 31 -- [2023] FWC 1201 23 A modern award must not be expressed to cover classes of employees: a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. Note: For example, in some industries, managerial employees have traditionally not been covered by awards. 40. In its Outline of Submissions, the Respondent submits that the Applicants are excluded from the Miscellaneous Award’s coverage as they do not perform work of ‘similar nature’ to that traditionally regulated by awards. The Respondent has referred to a Four yearly review of modern awards decision, in which the FWC expresses a view that website designers are not covered by the Miscellaneous Award. In response, the Community and Public Sector Union submitted that a diploma-qualified person in this occupation could be classified as a sub- professional employee under Level 4. However, the FWC chose to make no findings, as the union failed to address whether website designers would be excluded from coverage based on section 143(7) of the FW Act i.e., whether or not these employees have been traditionally covered by awards. 41. The Applicants submit that ICT-related work is of a ‘similar nature’ to that traditionally regulated by awards: a) The FWC maintains a list of pre-modern awards affected by the awards modernisation process, which allocates each instrument to a modern award. The pre-modern awards allocated to the PE Award indicate, broadly, that employees working in engineering and information technology were characterised as: i) trades or technical employees, now covered by industry awards or the Manufacturing and Associated Industries and Occupations Award 2020; ii) professional employees, now covered by the PE Award; or iii) clerical employees, now covered by the Clerks—Private Sector Award 2020. b) The Tasmanian Information Technology Industry Award was a pre-modern award covering the information technology industry. The award includes a professional stream, as well as a non-professional stream, indicating that information technology employees have historically been award covered in at least one Australian state, regardless of ‘professional’ status. Indicative tasks in the non-professional stream includes website development and Systems testing. The PE Award and the Clerks—Private Sector Award 2020 are listed as the modern awards relevant to the Tasmanian Information Technology Industry Award. -- 23 of 31 -- [2023] FWC 1201 24 42. Further, as submitted in the Applicants’ Outline of Submissions, it would be illogical for an employee – who works in an information technology occupation but has failed to obtain the requisite tertiary qualification or equivalent experience to be covered by a PE Award classification as a ‘professional employee’ – to be excluded from award coverage, particularly given that the Miscellaneous Award includes a ‘sub-professional’ classification. 43. The Applicants submit that, if they have failed to demonstrate they meet the qualification and experience requirements to fall within the PE Award classification, they were covered by the Miscellaneous Award in their employment with the Respondent.” (citations/references omitted) [74] Immutable argues that the Applicants are not covered by either the PE Award or the Miscellaneous Award on the following grounds: “27. Clause 4.1 of the PE Award provides for its coverage. Clause 4.1(b) is relevant to the information technology industry. For coverage to attract, two requirements provided for in cl 4.1(b) (as relevant to Immutable employees) must be satisfied. (a) First, the employer must be ‘principally engaged in the information technology industry’. The Respondent accepts that Immutable is principally engaged in the information technology industry. (b) Second, the employee must be covered by the Classifications in Schedule A of the PE Award. The Applicants are not employees covered by the classifications in Schedule A. 28. Schedule A.1 of the Award (‘professional responsibility levels’) gives definitions ‘for the performance of professional duties’. The ‘chapeau’ to Schedule A provides: ‘For employment involving the performance of professional duties … the following classification definitions apply’ (emphasis added). 29. While the terms ‘professional duties’ is not defined, in order to be covered by the PE Award, the employee must meet the stream specific definition provided in cl 2.3. It is not sufficient for the role to meet one of the broadly expressed Schedule A definitions, but not the definition of ‘professional information technology duties’. 30. Professional information technology duties are defined as (cl 2.3): Professional information technology duties means duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to: (a) hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or -- 24 of 31 -- [2023] FWC 1201 25 (b) have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society. 31. For coverage under the PE Award, the position needs to meet the Clause 2.3 definition of ‘professional information technology duties’, and the actual work performed, considered as a whole, must fall within one of the classifications. Holding a qualification is not enough, the qualification ‘must relate directly to the duties in question’. 32. Neither of the roles performed by the Applicants satisfied this requirement, as neither of their positions involved duties where the adequate discharge of such duties required such qualifications. 33. The Applicants’ concede that neither of the roles required them to have tertiary qualifications in order to adequately discharge their duties. 34. The evidence also commands a finding that the adequate discharge of the duties did not require a person to ‘have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society’. 35. This was not a requirement of any job description or statement of duties relevant to either Applicants’ position, or congruent with the manner in which either Applicant described his role before the issue became live in the course of this litigation. As Mr Short candidly admitted in cross examination, his self-assessment was done on the basis that he had to make good a bold assertion he had made in his first statement after it was challenged. It is an entirely self-serving analysis. 36. It is not in dispute that neither Mr Wakeham, nor Mr Short were a Certified Professional of the Australian Computer Society (ACS). They were not. Nor had either ever attempted to apply for such certification. 37. The Applicants have also not satisfied that in order to perform their roles they required sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society. As the evidence before the Commission clearly demonstrates, certification as a Certified Professional of the ACS is a demanding standard. The necessary skills framework is set out in the SFIA 8 Skills Framework for the Information Age (SIFA skills framework). The roles performed by each Applicant fell well short in its requirements of this detailed and exacting standard. 38. The Professional Standards Scheme which defines and governs the Information and Computer Technology (ICT) Profession is administered through the ACS. 39. According to the ACS’ Certification Guidelines, ICT practitioners who can be certified as Certified Professionals engage in more than just ICT-related work or possess specialised knowledge (although that it a baseline component). A Professional ‘adheres to a code of ethics’, ‘engages in continuing professional development’ and are subject to ‘a disciplinary code with a process for public complaint and sanctions’. Certification as a Professional requires ‘an in-depth -- 25 of 31 -- [2023] FWC 1201 26 understanding of the skills and knowledge areas’ described in a Core Body of Knowledge, and in general ICT knowledge areas. These are not just technical areas of knowledge, but include professional ethics, integrity systems, and a wide range of conceptual knowledge, where ‘Programming/Software Development’ is only one of several required fields. The Applicants’ accept that such elements are part of the pathway to successfully apply to Certified Professional status with the ACS, yet the evidence of Mr Short was that he did not adhere to a code of ethics. Mr Wakeham gave no evidence on the topic, but did give evidence that he had never heard of being a Certified Professional of the Australian Computer Society (despite purportedly assessing himself against its standards – discussed further below) and when asked whether he had heard of what was required to be a Certified Professional responded: ‘No, I’m not (sic.) really just interested in making video games’ and ‘A good attitude? No, I’m not aware’. From that, it may fairly be inferred that Mr Wakeham did not have knowledge of and adhere to a professional code of ethics. 40. There is no evidence that the Applicants are Certified Professionals by ACS, or that they completed courses of study which made them eligible for such certification. It is not in dispute that neither Mr Short nor Mr Wakeham had a university degree. They each held the following diplomas and certificates: (a) Mr Short completed an ‘Advanced Diploma of Professional Game Development’. (b) Mr Wakeham completed an ‘Advanced Diploma of Professional Game Development (Programming), Computer Games and Programming Skills’ and a ‘Certificate II Game Programming Foundations using C#’. 41. While these game development accreditations are ICT-related, there is no evidence that they cover the breadth of ACS-accredited programs. No attempt was made by the Applicants to lead any evidence as to the content of their respective courses of study, even at a summary level, in order to establish that they covered the breadth of ACS-accredited programs. 42. If relying on ‘game development’ experience alone to meet the qualification, ten years’ relevant experience is required. Mr Short had nine years’ experience, and Mr Wakeham had seven years’ experience in the game development industry. 43. Regardless, whether for the purpose of qualification by an ICT Diploma plus five years’ experience or by ten years’ experience alone, the experience must demonstrate the ICT knowledge as prescribed by ACS. The evidence provided by the Applicants in this respect was clearly insufficient to objectively satisfy the standard. The Applicants say they completed self-assessment against ‘the relevant SIFA skills and competencies using the SIFA Framework’. They clearly did not, as was conceded by Ms Wakeham in cross examination. Mr Wakheam expressly conceded that there was no evidence before the Commissions to establish he was performing a role at SFIA Level 5. Such concession was reasonable given that he had purported to assess himself at levels of competency -- 26 of 31 -- [2023] FWC 1201 27 that were not available for the particular SIFA skills he selected. Mr Short’s assessment was also based on self-assessment of how he understood his role, not reflective of the job descriptions available for his position. His assessment also involved erroneous applications of the SIFA skills framework. 44. In any event, what the Applicants’ self-assessed themselves as being, no matter how inflated or misguided, is entirely irrelevant to the assessment that needs to be undertaken by the Commission. What the Applicants need to satisfy is that the roles they performed required them to have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society. 45. There is no reliable evidence before the Commission that the Applicants’ roles required an in-depth understanding of the broad subjects of the ACS Core Body of Knowledge or engaged in the key features of ACS Professional work meeting the standards set in the SIFA skills framework. 46. It has not been shown that the Applicants could demonstrate the roles required ICT knowledge, in-depth competence at SFIA Level 5, and the requisite professional experience, or the professional aspects beyond areas of technical knowledge, such as following a code of ethics. 47. Accordingly, the Applicants roles did not require ‘professional information technology duties’ within the meaning of cl 2.3 of the PE Award, Consequently, the Applicants are not covered by the PE Award and the attendant obligations to consult did not apply. C.1.2.2 Miscellaneous Award does not apply 48. The Applicants’ alternative argument, that they are covered by the Miscellaneous Award as a ‘sub professional employee’ at Level 4 of cl 12, is also misconceived. The Miscellaneous Award is not a catch all Award designed to cover those who are not covered by other Awards, as appears to be implied by the Applicants. Rather, it has an accepted scope of coverage and its application to the Applicants who are highly paid and, in their own submission, performing ‘highly skilled roles’ would distort the intended operation of that Award. 49. The defined scope of the Miscellaneous Award is clear from its legislative underpinning. The Miscellaneous Award does not cover employees excluded from coverage by section 143(7) of the FW Act, being: … classes of employees: (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. -- 27 of 31 -- [2023] FWC 1201 28 50. This exclusion is reflected in clauses 4.2 and 4.3 of the Miscellaneous Award’s coverage provision, as amended by review in 2020. 51. Work of ‘a similar nature’ to that traditionally regulated by awards for the purposes of section 143(7) has been identified by the Commission in past cases to include animal attendants in the pet grooming and boarding industry, courier employees in an on- demand food delivery service, security guards and cleaners, and leading hands. Work which has been identified as that not likely be covered as such work included website designers, managerial or professional employees, workers in accountancy practices, and supervisory staff in the aluminium industry. The Applicants’ work is more similar to the latter group, and was not work of a similar nature to that traditionally regulated by awards. 52. The thread tying together work in the former group is to provide award-level pay and conditions protections for low or modestly paid workers, in accordance with the FW Act’s section 134(1) purpose. The Modern Award system is not designed for well-paid workers undertaking work of a nature not traditionally covered by awards. As expressed by the Full Bench in United Voice Kennels, the Modern Award system protects ‘lower skilled and modestly or low-paid employees of the type which ordinarily would be most suited to award coverage’. 53. The Applicants quote in their opening submissions from paragraph [46] of the Full Bench’s decision in 4 Yearly Review regarding the dangers of being award-free, but do not quote the context in the beginning of that paragraph, which is about ‘cleaners and security guards, who generally perform lower-skilled duties for low or modest pay’. 54. The Applicants concede that the roles they performed were ‘highly skilled roles’. At the time of termination neither of the applicants were low-paid employees: Mr Wakeham’s base salary was around $105,000 per annum; Mr Short’s was $130,000 per annum. Both were entitled to shares as part of the Employee Share Option Plan on top of those base salaries. The Applicants were paid well above the rate provided for under the Miscellaneous Award (some 50% above the highest Level 4 Award rate for Mr Wakeham and some 130% above that level for Mr Short, separate to their access to the company share option plan). These employees did not need the protection of an award rate which was equal to or slightly above the National Minimum Wage, because they at all times were remunerated well above that range of pay rates. Their employment was not for lower-paid, lower-skilled work like the categories recognised by Commission cases as not being affected by section 143(7). None of those categories were well-paid jobs, or indeed skilled jobs, like those of the Applicants. Further, in the opinion of Mr Wakeham, he was performing senior leadership duties. It is clear that roles of both Applicants’ are not of a kind traditionally covered by awards. 55. The Applicants are not covered by the Miscellaneous Award, and accordingly no obligations to consult included in that Award applied at the time of the redundancies.” (citations/references omitted) -- 28 of 31 -- [2023] FWC 1201 29 [75] In terms of the PE Award, I am satisfied and find that Immutable is an employer principally engaged in the information technology industry. I am not satisfied based on the evidence and submissions that the Applicants were engaged to perform work that could reasonably be described as falling within one of the classifications of the PE Award. I agree with the submission of the Respondent that the positions held by the Applicants were required to satisfy both the definition of “professional information technology duties” and show that the actual work performed fell within one of the classifications. The evidence supports a finding that neither of the positions held by the Applicants required the qualifications outlined in the PE Award, nor did their duties require them to have sufficient qualifications to be a Certified Professional of the Australian Computer Society. [76] Further, I am not satisfied that the Miscellaneous Award applies to the Applicants. In addition to the fact that the Applicants’ salaries are both well above the rates provided for under this Award, there is no obvious classification that would cover the work they perform. [77] If I am wrong about the award coverage, I would otherwise be satisfied that the process undertaken by Immutable met the minimum requirements of the consultation clause. [78] Clause 24.1 of the PE Award provides: 24.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must: (a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and (b) discuss with affected employees and their representatives (if any): (i) the introduction of the changes; and (ii) their likely effect on employees; and (iii) measures to avoid or reduce the adverse effects of the changes on employees; and (c) commence discussions as soon as practicable after a definite decision has been made. [79] This clause is in similar terms to clause 27.1 of the Miscellaneous Award. [80] I agree with the submission made by Immutable that neither award requires an employer to provide an opportunity for the employee to change a definite decision that has been made to restructure of a business. Rather, the awards require an employer to discuss certain prescribed matters with affected employees. [81] The evidence supports a finding that Immutable gave notice of the changes to the Applicants after it had made a definite decision to make a major change that would have a significant effect on them. It discussed the matters set out in 24.1(b), and did so shortly after the decision was made. -- 29 of 31 -- [2023] FWC 1201 30 [82] The time period for such discussion was very short in this case, however it does not automatically follow that a short time period means the requirements of the award were not met. I am satisfied based on the evidence that the required matters were discussed with the Applicant’s and they were given an opportunity to review what alternative positions were available. Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise? [83] As set out earlier, s.389(2) provides that a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise. [84] The evidence supports a finding that Immutable engaged in the process of reviewing redeployment options for the Applicants. This involved the direct manager of the Applicants assessing their suitability for vacant roles and inviting the Applicants to review the full list of vacant positions with a view to expressing their interest in any of those positions. Both Applicants accepted in cross examination that there were no suitable roles available at that time. Conclusion [85] For the above reasons, I am satisfied that the Applicant’s employment came to an end for reasons of genuine redundancy within the meaning of s.389 of the Act. [86] As a result, they are not persons protected from unfair dismissal and these applications must be dismissed. An order giving effect to this decision will be issued separately. DEPUTY PRESIDENT Appearances: J Lee for Alexander Short and James Wakeham. L Hilly of Counsel for Immutable Pty Ltd. Hearing details: 2023. By video: February 7, 8. Final written submissions: 27 March 2023. -- 30 of 31 -- [2023] FWC 1201 31 Printed by authority of the Commonwealth Government Printer <PR762093> 1 [2022] FWC 2829 and PR747076. 2 See paragraph 1553 of Explanatory Memorandum to the Fair Work Bill 2008. 3 [2010] FWAFB 3488. 4 XPT Case (1984) 295 CAR 188. -- 31 of 31 --