Advertiser Newspapers Pty Limited v Tei-El Smith [2018] FWC 3737

1 Fair Work Act 2009 s.120 - Application to vary redundancy pay for other employment or incapacity to pay Advertiser Newspapers Pty Limited v Tei-El Smith (C2018/2454) Ivy Lee (C2018/2460) Catherine Gardner (C2018/2462) COMMISSIONER HAMPTON SYDNEY, 12 JULY 2018 Applications for variation of redundancy pay – related applications heard together – whether acceptable alternative employment obtained – employees remained in employment with applicant employer in different roles – dealt with, without deciding, on the basis that redundancies were also terminations entitling the employees to redundancy payments under the NES – approach to acceptable employment considered and applied – same salary, location and general working conditions with no loss of accrued service or entitlements – differences in nature of work and required skills considered – undertaking provided about retention of same acceptable working hours – alternative employment objectively acceptable – discretion exercised to reduce any NES redundancy payments to nil – orders made. 1. Background and case outline [1] Advertiser Newspapers Pty Limited (the Advertiser) has made three applications pursuant to s.120 of the Fair Work Act 2009 (the FW Act) seeking a reduction in the redundancy pay otherwise due to three of its employees; namely, Ms Tei-El Smith, Ms Ivy Lee and Ms Catherine Gardner (collectively - the respondent employees). [2] It is common ground that each of the respondent employees have been made redundant and been provided with alternative employment in another position with the Advertiser. [3] At all relevant times the employment of the respondent employees was, and is, covered by the Clerks - Private Sector Award 2010 (the Award). The Award provides that the redundancy entitlements are as established by the National Employment Standards (NES) of the FW Act. [2018] FWC 3737 DECISION -- 1 of 17 -- [2018] FWC 3737 2 [4] I note that the Advertiser also has in place a redundancy policy with entitlements beyond the NES; however, any dispute about the application of that policy is outside the scope of these matters.1 [5] The applications therefore relate to the redundancy payments provided by s.119 of the FW Act, which are established in the following terms: “119 Redundancy pay Entitlement to redundancy pay (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated: (a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or (b) because of the insolvency or bankruptcy of the employer. Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.” Amount of redundancy pay (2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work: Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks -- 2 of 17 -- [2018] FWC 3737 3 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks [6] The applications have been made under s.120 of the FW Act which provides as follows: “120 Variation of redundancy pay for other employment or incapacity to pay (1) This section applies if: (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and (b) the employer: (i) obtains other acceptable employment for the employee; or (ii) cannot pay the amount. (2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate. (3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.” [7] The respondent employees have each been employed at the Advertiser for a number of years and during that time have performed different, but related roles. Immediately prior to the redundancy, each employee was engaged in the role of Subscriber Operations Administrator (SOA). [8] On 3 April 2018, the Advertiser made a decision to restructure the subscriber operations administration function. On the same date, the respondent employees were notified of the decision to make their roles redundant. The respondent employees were all offered the new position as a Customer Service and Sales Representative (CSSR) to commence on 7 May 2018. [9] There is no dispute that the former positions have been made redundant; that is, it is agreed by the parties that the Advertiser no longer requires the position of SOA to be performed by anyone. There is also no dispute between the parties that the respondent employees are entitled to a redundancy payment as a result of s.119 of the FW Act. It is apparent that the entitlements under s.119 are conditional upon the employees having been terminated at the employer’s initiative. There may well be an issue as to whether, as a matter of fact and law, this has occurred in the case of the three employees concerned here. That is, -- 3 of 17 -- [2018] FWC 3737 4 the employees have each remained employed by the Advertiser and are currently working in the new roles as a CSSR, albeit on the basis that they dispute that the position is “other acceptable employment”, awaiting the outcome of the applications. However, I have dealt with the applications on the agreed basis noting that if they have not been dismissed, no redundancy obligations under the NES arise.2 Further, as will become clear, it has not become necessary to finally determine this aspect given my ultimate findings. [10] The Advertiser contends that it has obtained “other acceptable employment” for the respondent employees within its own business and as a result, it seeks that the Commission exercise its discretion under s.120(1)(b)(i) of the FW Act to reduce the redundancy amount to nil. The Advertiser does not contend that it cannot pay the redundancy payment and as a result does not seek to rely upon s.120(1)(b)(ii) of the FW Act. [11] The respondent employees dispute that the alternative position constitutes “other acceptable employment” and contend that the role is not comparable (or suitable) due to the differences in the nature of the work as well as some of the employment arrangements which may apply to the new role. [12] I note that there were initially a number of disputes lodged by one or more of the respondent employees under s.739 of the FW Act in relation to the non-payment of redundancy entitlements and disputing the redundancies and associated issues. During those proceedings the Advertiser advised of its intention to file the s.120 applications. Those matters were resolved on the basis that the issues would be dealt with by the determination of the s.120 applications. 2. The position advanced by the Advertiser [13] The Advertiser was represented, with permission3, by Mr Nick Chadwick from Chadwick Workplace Law. The Advertiser, provided an outline of submissions in support of its applications along with witness statements from the following employees:  Daniel Kosmider, Service Manager at Advertiser Newspapers;  Luke Knight, Operations Manager at Nationwide News Pty Limited; and  Nadia Mantatch, HR Business Partner Associate at Nationwide News Pty Limited. [14] Each of these witnesses also gave sworn evidence to support the applicant employer’s case. [15] The Advertiser contends that the role of CSSR is other acceptable employment within the contemplation of s.120(1)(b)(i) of the FW Act. In particular, it submits that:  It has offered the CSSR position to each employee and they have worked in those roles since 7 May 2018 (subject to not performing telephone work pending the outcome of these applications);  There has been continuity of service with past service being recognised for the purpose of calculating any entitlements; -- 4 of 17 -- [2018] FWC 3737 5  The hours of work for each employee will remain the same and there is no change to rostering arrangements;  Consistent with the SOA role, the employees will not be required to work on weekends or Public Holidays;  The employees are performing work in the same location, although in a different area of the same office; and  Each employee is skilled and able to perform the work required and have experience performing similar work in previous roles with the Advertiser. [16] The Advertiser submits that the redundancy payment should be reduced to nil given the provision of other acceptable employment. [17] In the course of the proceedings, the Advertiser provided a formal undertaking about working hours arrangements to reinforce its contentions about some of the above matters. I will return to that detail shortly. 3. The position advanced by the respondent employees [18] The respondent employees each provided a written statement in support of their positions along with various attachments referred to in those statements. Ms Lee also relied on an additional witness statement provided by Ms Heather Andriessen, Outbound Sales Representative with News Customer Support. [19] Each of the respondent employees also gave oral evidence in support of their case. Ms Andriessen’s statement was admitted by consent. [20] The respondent employees contend that the CSSR position is not acceptable alternate employment for the following reasons:  The CSSR position involves responding to inbound telephone calls in a call centre environment, rather than performing the administrative tasks required of the SOA position;  The CSSR position has individual Key Performance Indicators (KPIs) to reach whereas the SOA role only had a team KPI;  There is less flexibility in hours of work associated with the CSSR position given that it operates in a call centre environment which operates 7 days per week;  CSSRs are rostered to work on the weekends and Public Holidays, which was not required in their roles as SOAs; and  The employees do not have the training currently required to be able to competently perform all aspects of the work as CSSRs. [21] The respondent employees seek the full payment of the statutory redundancy entitlements and, in effect, that each application be dismissed. -- 5 of 17 -- [2018] FWC 3737 6 4. The circumstances of the parties [22] There were few direct factual disputes of relevance in these matters. I consider each of the witnesses gave their evidence honestly and openly. [23] There were differences of view about the variances between the different former roles and that of the CSSR position and the implications of any such differences. I have resolved these matters having regard to all of the evidence before the Commission including the comprehensive written materials. There was also some tension about the precise terms of the CSSR role as it was to be applied to the respondent employees. It became apparent during the course of the hearing in these matters that as a result of these applications, some discussions, training and induction processes that would have provided that clarification were held in abeyance. Ultimately, some additional clarification was provided as a result of these proceedings. [24] The crucial dispute evident in the parties’ positions is about whether the new role was acceptable, however as will become clear, that is an assessment to be made objectively by the Commission itself. [25] I will return to the basis and detail of that assessment shortly, however some general findings about the context and prior work history of the respondent employees is necessary. [26] The Advertiser is part of Nationwide News Pty Limited and it publishes news on print, digital mobile and tablet platforms. This includes major newspapers. Relevant to these applications, this service is supported by digital and print subscription systems which are in turn supported by the News Customer Support Call Centre, various related administration and other support services, and national marketing teams. [27] The respondent employees have each held different positions with the Advertiser prior to commencing in the SOA role performed from August 2017 until the date of the redundancies. Some of these roles had closely related functions and some of their titles have been used interchangeability in some documentation. Without being exhaustive, the following general picture of the employees’ work history is illustrative of their background with the Advertiser prior to undertaking the most recent SOA role. [28] Ms Lee first commenced as a Subscriptions Inbound Online Consultant (also described as an Online Subscriptions Consultant) on 27 February 2012. The position description4 for that position describes its purpose as: “… … To provide print & online subscription sales and service solutions to new and existing customers. To provide support in the implementation and maintenance of News Ltd Divisional services that meet the customers’ requirements to a high professional standard. To achieve personal and business goals relating to subscriber management and retention. … …” -- 6 of 17 -- [2018] FWC 3737 7 [29] Ms Lee subsequently worked as a Subscriptions Administration Consultant (also described as a Subscriber Administration Representative) from 5 November 2012. The position description5 provided for that role sets out the purpose of the position as: “… … To provide administrative support to the Subscriptions team to assist in the management and retention of Subscriptions customers. To perform administrative responsibilities within agreed service level expectations. … …” [30] In September 2017, Ms Lee was given a secondment to the position of Team Leader. That secondment concluded when Ms Lee was offered the new CSSR role. [31] Ms Smith commenced as a Customer Service Representative on 8 September 2010. The purpose of that positon is described in the positon description6 as: “… …  To provide front line customer service to readers, subscribers, newsagents and retailers.  Ensure all customer requests are processed and actioned in a timely, accurate and professional manner.  Provide administrative assistance to the Circulation department.  Administer Supply and Return functions  Assist with debt control associated with Customer home delivery accounts. … …” [32] On 20 June 2011, Ms Smith commenced a further contract as a Subscription Inbound Admin Consultant (variously described as Subscriber Administration Representative, Subscriptions Inbound Sales & Service Representative and Subscriptions Administration Representative). This position description7 outlines the purpose of the role as: “… … To provide administrative support to the Subscriptions team to assist in the management and retention of Subscription customers. To perform administrative responsibilities within agreed service level expectations. … …” [33] Ms Gardner commenced work for the Advertiser as a Customer Service Representative on 13 November 2006. The position description8 describes the purpose of the role as: “… … -- 7 of 17 -- [2018] FWC 3737 8 To encourage home delivery and the maintenance of all records related to the home delivery service. To process all newsagent order changes on behalf of Advertiser Newspapers Limited (ANL) and to process returns for all of these products. To process all Telemarketing activity by the Company and for the Company. To be efficient and effective within the ‘Call Centre’ and a supportive team member within the department. … …” [34] From 2007, Ms Gardner’s position was described as being a “Customer Service Representative & Circulation Administration” with the purpose of the role being updated in the position description, as follows: “… …  To provide front line customer service to readers, subscribers, newsagents and retailers.  Ensure all customer requests are processed and actioned in a timely, accurate and professional manner.  Provide administrative assistance to the Circulation department as requested from time to time. … …”9 [35] A new position description was provided to Ms Lee in 2012 describing the role as Subscriber Administration Representative (also described as Subscriptions Inbound Admin Consultant) and updated the purpose of the role in the position description as: “… … To provide administrative support to the Subscriptions team to assist in the management and retention of Subscription customers. To perform administrative responsibilities within agreed service level expectations. … …” [36] I observe that although all of the roles outlined above had a significant element of administration, the Customer Service Representative roles undertaken by Ms Smith and Ms Gardner, and the Subscriptions Inbound Online Consultant role undertaken by Ms Lee, in particular also involved both sales functions and some front line customer service elements. [37] In August 2016, each of the respondent employees became an SOA as a result of a change in reporting lines. The SOAs position description10 describes the purpose of the role as: “… … -- 8 of 17 -- [2018] FWC 3737 9 To complete admin duties relating to DTI/THINK integration issues. To achieve personal and business goals relating to subscriber management. To be part of a customer focused, high performance team based culture.” … …” [38] The role of the SOA, in which the employees were engaged immediately prior to the events leading to these applications, was part of the Advertiser’s subscriber management team and involved the following operational roles:  Process corporate subscriptions required by the National Corporates Team;  Complete administrative support tasks generated in the backend systems including generating tax invoices, processing payments, cancellations and refunds, updating personal information; and  Other process import activities into the billing system. [39] As such, whilst the SOA role was part of an overall service and sales function, it was predominately an administrative role. The employees undertaking the SOA role worked in association with the Call Centre to the extent that they might administratively process or deal with matters arising from that centre, but were separately located on the same floor. There was no phone-based work and no direct sales or upselling role performed by the SOAs. [40] In April 2018, the Business Operations area, in which all of the various positions have been located, was restructured. This arose from the implementation of various systems improvements, ongoing changes in the nature of subscriptions, and the outsourcing of some work to an overseas call centre. [41] The respondent employees were notified of the redundancy from the SOA position on 3 April 2018 and offered the CSSRs position as a “comparable role”. The CSSR position description11 states the purpose of the role as being: “… … To service new and existing customers through a variety of channels to resolve any issues whilst maximising each interaction to achieve increase revenue opportunities. … …” [42] During the hearing, the Advertiser confirmed that the general CSSR position description was a broad description of the role of all customer service employees and not all of the aspects of that description apply to the employee’s roles. [43] In practical terms, the CSSR role, as will be applied to the respondent employees, involves the following responsibilities:  Taking inbound calls and email enquiries from existing customers regarding their subscriptions;  Handling call types and email enquiries such as missed deliveries;  Suspension of home delivery requests through calls and emails; -- 9 of 17 -- [2018] FWC 3737 10  Technical calls and emails related to online/”app” products;  Payment-related calls and emails (updating payment details; and  As part of handling the various call types, seeking to upsell customers to higher yielding products and to seek to retain existing customers and sales.12 [44] The CSSR role is undertaken as part of the Advertiser’s Adelaide call centre. That centre is located on the same floor of the building where the SOA role was based. There are three areas (functions) within the call centre; sales, services and retention. The respondent employees are located in the services section of the centre and as such would be required, amongst other duties, to receive inbound calls and upsell where possible, but are not required to make outbound sales calls including cold calling potential new customers. [45] The call centre has 70 staff in total, with 10 dealing with email correspondence and the rest separated into their applicable functions. In relation to the CSSR position, there are individual KPIs to reach and this involves an expectation that there should be a sale for 2% of all calls in a month. There are additional “stretch” targets, or opportunities to earn a commission on income, however the minimum requirement was 2% and if any employee fell under that requirement, performance management may be considered.13 [46] The respondent employees commenced in the new CSSR roles on 7 May 2018, initially participating in some side-by-side training. As outlined earlier, the employees have not been undertaking the full roles, pending the outcome of this matter, but expect to do so, provided appropriate training is given to them by the Advertiser. [47] The salary applicable to the CSSR role and the general conditions of employment, leaving aside the hours of work for the moment, are the same for each respondent employee as applied under the most recent SOA positions. Both roles are underpinned by the terms of the Award. [48] It is clear from the evidence that each of the respondent employees are well regarded by the Advertiser, which is keen to retain their experience and work skills within the business. 5. Did the Advertiser obtain acceptable alternative employment for the employees by offering the positions? [49] In order to determine this question, it is necessary to consider both the appropriate approach to be taken by the Commission to s.120 of the FW Act and the nature of the alternative position in the context of these parties. [50] The historical context for the nature of the provisions that are now found in s.120 of the FW Act is summarised by the Full Bench of the Australian Industrial Relations Commission in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 198214 (Derole) in the following terms: “ “Obtains” This term originates from the first decision in the Termination, Change and Redundancy Case where the Full Bench said: -- 10 of 17 -- [2018] FWC 3737 11 “Two particular instances, which the employers argued might warrant an application for relief from the obligation to pay the general prescription, which were brought to our attention in the proceedings were when an employer obtains acceptable alternative employment for the employee, and where employees receive the benefit of superannuation schemes on retrenchment. We do not wish to prevent an employer making an application to be exempted from the general prescription pursuant to this decision in cases where an employer obtains acceptable alternative employment for an employee but we would point out that, in our decision, severance payments are not made for the purpose of assisting employees to find alternative employment. Where such an application was made it would be important to consider whether previous service with the previous employer was recognized as service with the new employer.” The word “obtains” does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate. It follows that “obtain” must be given some lesser meaning. The Shorter Oxford Dictionary (third edition, revised) provides as its relevant meaning, the definition of “obtain” as “to procure or gain, as the result of purpose and effort”. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind. This approach is supported if the passages quoted above from the Termination, Change and Redundancy Case are read in conjunction with what was said under the heading “assistance in seeking alternative employment”. There the Commission records the ACTU objective of achieving award provisions “designed to ensure that the employer assists the employee to find alternative employment”. Reliance was placed by the ACTU on a decision of the South Australian Industrial Commission in the Milk Processing and Cheese Etc Manufacturing Case: “where it was decided that there should be included in any detailed prescription on redundancy an obligation on the employer actively to offer, or to make reasonable endeavours to procure, suitable alternative employment for redundant employees.” -- 11 of 17 -- [2018] FWC 3737 12 Dealing with the circumstances in which the general prescription the Full Bench was awarding might be departed from, the decision in the Termination, Change and Redundancy Case indicates that particular regard was paid to, inter alia, the S.A. Milk Processing and Cheese Etc. Manufacturing decision. Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.” 15 [51] I note that one element of the approach taken in Derole must however now be considered subject to the later decision of the Full Federal Court in FBIS International Protective Services (Aust) Pty Ltd v The Maritime Union of Australia.16 In particular, the Court has qualified that the appropriate reference point to assess the efforts of the applicant employer in obtaining alternative employment does not involve consideration of whether the employer was the strong, moving force towards the creation of the available opportunity.17 [52] In any event, there is no doubt in this case that the Advertiser obtained the alternative employment for the respondent employees. It organised the positions within its own business and made a definitive offer which was subsequently accepted by each employee; albeit without conceding that the new position was acceptable for present purposes. [53] The critical issue here is whether the alternative positions are acceptable. [54] It is well established in this jurisdiction that the concept of acceptable alternative employment is to be determined objectively and that the mere rejection of the alternative does not make it objectively unacceptable. As noted by the Full Bench in Derole: “What constitutes "acceptable alternative employment" is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect. Yet, the use of the qualification "acceptable" is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.” 18 [55] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer19 and it is a serious step for the Commission to make an order to limit or remove an employee’s statutory entitlement to redundancy payments.20 In order to establish whether the alternative employment obtained by the employer is acceptable, it is necessary to have regard to all relevant matters including factors such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters including the location of the employment and travelling time.21 -- 12 of 17 -- [2018] FWC 3737 13 [56] It is also clear that acceptable employment does not mean identical employment; however, it has been held by the Commission that: “…the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.”22 [57] As observed by Bissett C,23 this approach is consistent with other authorities.24 [58] Further, employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.25 [59] If the Commission is satisfied that acceptable alternative employment has been obtained, a discretion arises to reduce all or some of the redundancy pay having regard to all of the relevant circumstances.26 [60] In general terms, the new CSSR role, with the continuation of the same salary, general working conditions and the maintenance of all entitlements and continuous service, form the basis for an objectively acceptable alternative position. It is against that proposition that I consider the concerns raised by the employees as these highlight some of the potential differences that may shed light on whether the CSSR role is an acceptable alternative position for each of them. [61] The respondent employees, in effect, raised two related sets of concerns. These included the organisational environment in which the work was to be performed; being a 7 day operation with the potential to impact upon the extent, timing and/or flexibility of the working hours. [62] The second set of concerns was associated with the nature of the work connected with the CSSR role, including the sales and phone-based work component and related performance expectations. In addition, the employees considered that the extent of training and familiarisation with the associated workplace systems was insufficient. [63] During the course of the hearing, the Advertiser agreed to provide a formal undertaking to the employees about their roles and working hours, and subsequently did so. This included that Ms Lee would work on Monday from 7:30 am to 4:00 pm and then Tuesday to Friday between 7:30 am and 3:30 pm but that if she wanted to work an additional 30 minutes on a day other than Monday, Ms Lee is to provide 4 weeks’ notice or less by agreement. [64] Ms Smith and Ms Gardner also received confirmation that they would continue to be engaged on the same days and same hours during the week that they were working as SOAs. The undertaking significantly addressed the concerns raised by the employees in relation to their hours of work and rostering arrangements. I understand that the undertaking is acceptable to each of the respondent employees. -- 13 of 17 -- [2018] FWC 3737 14 [65] As a result, each of the employees has been guaranteed the same, or in one case - an alternative but acceptable, basis for their working hours and they will not be required to work on weekends or public holidays. [66] In reality, these undertakings provide additional certainty that the employees did not have in the SOAs role, given that it was possible their working hours may have changed under the former position with appropriate notice and consultation. This would have been consistent with their various contracts of employment27 and the terms of the Award.28 I note also that each of the respondent employees worked weekends and public holidays in the SOA role until September 2017. Accordingly, in this regard, the respondent employees are in fact now in a better position in respect of these aspects. This puts any remaining concerns about the nature of the operations of the call centre and the impact of this upon working hours flexibility in a particular context. [67] I turn to the second set of concerns raised by the employees related to the nature of the work involved with the CSSR position. [68] The respondent employees contend that the CSSR position is located in a call centre environment and involves phone-based work and up-selling, whereas the SOA role was more administrative in nature. This is so and is an important factor to be taken into account. [69] I also accept that the CSSR position has an associated set of KPIs which relate to individual performance and this is also a relevant change. [70] Each of the three respondent employees advanced concerns about the extent of knowledge of some of the sales related business systems and the extent of training provided. The Advertiser confirmed that if sought, each of the three employees would be provided with the full training that would be made available to an employee who was new to the Advertiser. During their evidence, each of the respondent employees indicated that they would be prepared to undertake the full CSSR role as relevant to them, should that training be provided. [71] As outlined above, I accept there is a change in the roles associated with the CSSR position, including because it involves accepting and dealing with inbound telephone calls and there is a component of sales required in that role. This is also reflected to some degree in the adoption of the KPIs. However, given the nature of earlier roles that have been undertaken by each of the respondent employees and the nature of the CSSR position, the new role is not of a significantly different nature. In that regard, I note the sales component does not involve out bound sales and no cold calling is required, but rather upselling and maintenance of customers who have called in. Further, the extensive additional training that is to be provided to the employees, combined with their existing skills and experience in related roles, will assist with any transition that is to occur. I also note that the work of the SOA and that of the CSSR position fall within the same classification structure of the Award.29 [72] Having regard to all of the circumstances evident here, I am satisfied that the Advertiser has demonstrated that the CSSR position is acceptable alternative employment for present purposes in relation to each of the respondent employees. -- 14 of 17 -- [2018] FWC 3737 15 6. Is it appropriate for the Commission to make an order to reduce the amount of redundancy pay? [73] Given that the employer has obtained acceptable alternative employment for the respondent employees, the final issue is whether there should be a reduction (including potentially to zero as sought by the Advertiser) in the amount of the redundancy payments. As outlined earlier, this is a matter of discretion to be exercised having regard to all of the relevant circumstances of a particular matter. [74] I consider that each of the respondent employees has been provided with suitable and objectively acceptable alternative employment working the same hours of work, general rostering arrangements, salary and conditions of employment as had been previously applied. There is no break in, or loss of, the continuity of their service. The nature of the redundancy payments provided in the NES recognises that employees who are terminated by virtue of redundancy lose their non-transferable credits (including potential access to long service leave) and their continuity of service and seniority, and suffer other inconvenience and hardships.30 [75] In these circumstances, I consider that if any NES redundancy payments are due they should be reduced to nil. 7. Conclusions and orders [76] I have found that the CSSR position is acceptable alternative employment within the meaning of s.120 of the FW Act. I have also found that it is appropriate to exercise my discretion to reduce any NES redundancy payment otherwise due to Ms Smith, Ms Lee and Ms Gardner. [77] In all of the circumstances, I have determined that the redundancy payments should be reduced to nil. Orders31 to that end are being issued in conjunction with this decision. COMMISSIONER -- 15 of 17 -- [2018] FWC 3737 16 Appearances: N Chadwick of Chadwick Workplace Law, with permission, on behalf of Advertiser Newspapers Pty Ltd. T Smith, the respondent employee, on her own behalf. I Lee, the respondent employee, on her own behalf. C Gardner, the respondent employee, on her own behalf. Hearing details: 2018 Adelaide June 26. Final Submissions: Advertiser Newspapers Pty Ltd (provision of written undertaking) - 27 June 2018 Ms Smith, Ms Lee and Ms Gardner (advice confirming no further submissions to be made) – 29 June 2018. Printed by authority of the Commonwealth Government Printer <PR608413> 1 The redundancy policy is not part of any industrial instrument (relevant to the present parties) providing the Commission with any power to determine a dispute about its terms – see also part 6-2 of the FW Act. 2 See the discussion about this aspect in CAE Australia Pty Ltd v Zekants and Edwards [2012] FWA 7992. 3 Permission was granted prior to the hearing for reasons supplied to the parties on 22 June 2018. 4 Exhibit A5, Annexure F. 5 Exhibit A5, Annexure H. 6 Exhibit A5, Annexure C. 7 Exhibit A5, Annexure H. 8 Exhibit A5, Annexure D. 9 Exhibit A5, Annexure E. 10 Exhibit A5, Annexure A. 11 Exhibit A5, Annexure B. 12 Confirmed by the evidence of Mr Kosmider. 13 Ibid. 14 Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 1982 (1), (1990) 140 IR 123 per Peterson J, Marsh DP and Oldmeadow C. 15 Ibid at 127 and 128. 16 [2015] FCAFC 90. 17 Ibid at [19] and [20]. 18 Derole at 128. -- 16 of 17 -- [2018] FWC 3737 17 19 Re Target Retail Agreement 2001, PR916204, 4 April 2002, at para 6. 20 Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226. 21 Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole. 22 Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 (16 May 2007) at [26]. 23 In Vicstaff Pty Ltd T/A Stratco v May and McFerran [2010] FWA 3141 at [28]. 24 Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226. 25 See also NUW v Tontine Fibres [2007] AIRCFB 1016 and the summary of principles in Spotless Services Australia Limited [2013] FWC 4484 per Sams DP at [14]. 26 Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole. 27 Each, or most, of the various contracts of employment which applied to the respondent employees provided that flexible working hours were required and that this may involve working on weekends and public holidays. 28 The Award does not generally provide restrictions in the days or hours of work but does define the ordinary hours of work and penalties for work outside of those parameters. Section 62 and related provisions of the NES in the FW Act do provide some limitation on reasonable hours but do not restrict the working hours in the form provided by the undertaking. 29 Schedule B of the Award – which also includes express reference to call centre roles. 30 See Termination, Change and Redundancy Case (1984) 8 IR 34 at 73 and Redundancy Case (2004) 29 IR 155 at [5], [133] to [152]. 31 PR608947, PR608948, PR608950. -- 17 of 17 --