2017 WAIRC 00802
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2017 WAIRC 00802

CORAM
: INDUSTRIAL MAGISTRATE FLYNN

HEARD
:
WEDNESDAY, 12 JULY 2017

DELIVERED : THURSDAY, 14 SEPTEMBER 2017

FILE NO. : M 162 OF 2016

BETWEEN
:
AMMAR TIMOUR
CLAIMANT

AND

AEG OGDEN (PERTH) PTY LTD ABN 67 084 272 088
RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 – Claim for redundancy entitlement allegedly owed – Small Claims procedure – ‘Ordinary and customary turnover of labour’ – ‘Employment for a “specified task”’
Legislation : Fair Work Act 2009 (Cth)
Perth Theatre Trust Act 1979 (WA)
Long Service Leave Act 1958 (WA)
Workplace Relations Act 1996 (Cth)
Case(s) referred to
in reasons : Milardovic v Vemco Services Pty Ltd (Administrators Appointed)
[2016] FCA 19
McShane v Image Bollards Pty Ltd [2011] FMCA 215
Compass Group (Australia) Pty Ltd v National Union of Workers;
United Firefighters’ Union of Australia [2015] FWCFB 8040
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Result : Judgment for the claimant
REPRESENTATION:

CLAIMANT : IN PERSON
RESPONDENT : MR R. PILBEAM, EXECUTIVE DIRECTOR OF THE RESPONDENT.

REASONS FOR DECISION
1 In January 2002, Mr Timour commenced employment as a manager at His Majesty’s Theatre in Perth. The facts of this case are similar to a case heard by me on the day after I heard this case and in which I am delivering judgment on the same day: Fallens v AEG Ogden (Perth) Pty Ltd [2017] WAIRC . It has been convenient for me to follow a similar format in each judgment and to adopt the same or similar language when speaking about identical issues. I have obviously given separate consideration to the facts and issues raised by the evidence in the respective cases.
He was employed by the respondent (‘the Company’). At that time the Company managed the theatre as a result of an agreement with a body corporate established by the Perth Theatre Trust Act 1979, the Perth Theatre Trust (‘the PTT’) (‘the Management Agreement’). Mr Timour continued as an employee of the Company until 31 December 2014. On that date, as a result of ‘non-renewal’ of the Management Agreement by the PTT, the Company ceased to be the manager of the theatre and Mr Timour’s employment by the Company also ceased. Mr Timour expected that the Company would make a redundancy payment to him of $18,080.76. He refers to s 119(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) providing for a redundancy payment when employment had been terminated on the initiative of the employer and the employer no longer requires the job to be done by anyone.
2 The Company has not made a redundancy payment and disputes that Mr Timour is entitled to a redundancy payment. It makes four points in answer to his claim:
· Firstly, it argues that s 119(1)(a) of the FW Act does not apply because the cause of the end of Mr Timour’s employment was not ‘at the employer’s initiative’. It argues that the cause of the end of his employment was the end of the Management Agreement. For reasons set out below, this argument fails.
· Secondly, the Company relies upon the exception to the obligation to pay redundancy that is contained in s 119(1)(a), namely that the termination was ‘due to the ordinary and customary turnover of labour’. For the reasons set out below, the Company has failed to satisfy me that it falls within this exception.
· Thirdly, the Company relies upon the exception to the obligation to pay redundancy that is contained in s 123(1)(a) of the FW Act, namely that the termination corresponded with Mr Timour having been employed for ‘a specific period of time (or) for a specified task’. For the reasons set out below, the Company has failed to satisfy me that it falls within this exception.
· Fourthly, the Company relies upon s 120 of the FW Act which provides for the possibility of a redundancy payment being ‘reduced to a specified amount (which may be nil)’ when the criteria set out in the section is satisfied. My reasons for rejecting this argument may be stated briefly. Section 120(2) of the FW Act provides that an order for the reduction of redundancy pay is to be made by application of the employer to Fair Work Commission. The Industrial Magistrates Court has no power to make an order under s 120 of the FW Act: Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 [276] (Mortimer J) (‘the proper forum in which to seek to rely upon s 120 is through an application to the Fair Work Commission’).
3 Section 119 of the FW Act providing for a redundancy payment is one of the National Employment Standards and is a ‘civil penalty provision’ of the Act: FW Act, see s 45 and s 539. Mr Timour, being an employee of the Company, and the Company, being a ‘corporation to which paragraph 51(XX) of the Constitution applies’ are, respectively a ‘national system employee’ and a ‘national systems employer’: FW Act, s 13, s 14. The Industrial Magistrates Court of Western Australia (the Court) is an ‘eligible state or territory court’ for the purposes of the FW Act: see s 12. If the Court is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for the Company to pay to Mr Timour an amount that the Company was required to pay under the FW Act: FW Act, s 545(3)(a). Mr Timour has elected to use the small claims procedure provided for in s 548 of the FW Act. In small claims proceedings the Court is not bound by any rules of evidence or procedure and may act in an informal manner and without regard to legal forms and technicalities. Although the Court is not bound by rules of evidence, it remains necessary for Mr Timour to prove his claim on the balance of probabilities and the Court will only act on evidence having rational probative force: McShane v Image Bollards Pty Ltd [2011] FMCA 215 [7].
Facts
4 It is convenient to set out the relevant facts in a narrative form (below). Many of the relevant facts are either not in dispute or are the subject of uncontroverted evidence that I consider to be reliable. Save where I identify conflicting evidence on a fact, I am satisfied on the balance of probabilities, of the facts as set out below. Where I identify conflicting evidence, my stated finding should be taken to be findings ‘on the balance of probabilities’.
5 On 19 February 1999 the Company entered into the Management Agreement with the PTT. The effect of the Management Agreement was that the Company provided venue management services for identified venues including: His Majesty’s Theatre, Perth Concert Hall, State Theatre Centre and Subiaco Arts Centre. After being renewed on a number of occasions, the Management Agreement expired on 31 December 2014. The PTT had decided to resume the management of those venues itself, including of His Majesty’s Theatre.
6 The Management Agreement provided that the Company was to employ or contract all employees and contractors necessary for the management of the venues. The Management Agreement also made provision for what was to happen to employees of the Company at the end of the term of the Management Agreement, Specifically clause 12.3 provided:
[The Company] acknowledges that if this Agreement expires by effluxion of time and a new agreement is not entered into with the (Company)…the PTT may retain the right to operate The Venues…. In those circumstances (the Company) further acknowledges that at the expiry or earlier termination of this Agreement, the PTT…will either offer employment to the Employees…engaged in the operation of The Venues…or direct the Manager to properly terminate the employment of any such Employees upon payment of the appropriate Compensation as a cost to the (PTT).
7 In January 2002 Mr Timour successfully applied to the Company to be a restaurant manager at His Majesty’s Theatre. Terms and conditions of his employment were set out in a document signed by each party (‘the 2002 Employment Contract’). The 2002 Employment Contract included provision for:
· A salary of $35,000 per annum and other entitlements including annual leave, long service leave (‘per Western Australian legislation’), sick leave and other leave (‘as per statutory requirements’).
· Termination. ‘The employer or the employee is required to give one months’ notice in writing’.
· ‘Retrenchment’. The clause states that ‘if, during the term of your employment your position becomes redundant, the basis of any redundancy will be as per the terms of any statutory requirements or company policy, applicable at the time of the redundancy. A copy of the relevant legislation is available upon request from the Company’s Business Manager.’
The 2002 Employment Contract does not contain reference to the Management Agreement or to the PTT.
8 In October 2007 Mr Timour successfully applied for a different position within the Company, the position of ‘food and beverage manager’ at His Majesty’s Theatre. He was, in effect, promoted. Terms and conditions of his employment were set out in a ‘contract of employment’ signed by each party (‘the 2007 Employment Contract’). The 2007 Employment Contract included provision for:
· A salary package of $58,500. There is provision for other entitlements including annual leave, long service leave, personal leave and other leave (‘in accordance with the Workplace Relations Act 1996’). Mr Timour is described as a ‘salaried employee’. It is noted that his employment is ‘not exclusive to the Company and he may be called upon from time to time to perform the same or similar duties on other projects with which the Company is involved.’
· Termination. ‘The employer or the employee is required to give four weeks’ notice in writing’. The document included the following clause under the heading of ‘Period of Employment’ (‘the PTT Termination Clause’): The Employee’s employment is ongoing, however is subject to regular review of business needs. Should the Employer’s Venue Management Agreement to operate the Perth Theatre Trust Venues not be renewed or the Employee’s position is no longer required for the efficient operation of the Perth Theatre Trust Venues, the employee’s employment may be terminated with four weeks’ notice.
· ‘Retrenchment’. The clause states that ‘if, during the employee’s employment the employee’s position becomes redundant, the basis of any redundancy will be as per the terms of any statutory requirements or company policy, applicable at the time of the redundancy.’
9 In April 2014 it became known to employees of the Company, including Mr Timour, that the Management Agreement would end on 31 December 2014 and that the PTT intended to assume management of venues covered by the agreement, including His Majesty’s Theatre. On 11 April 2014 the Company wrote to employees confirming the expiration of the Venue Management Agreement on 31 December 2014. The letter included a reference to the possibility of the PTT making an offer of employment or ‘paying the appropriate compensation on termination of your employment agreement’ on 31 December 2014.
10 On 6 May 2014, by a memorandum signed by Mr Rod Pilbeam (the Executive Director of the Company) (Mr Pilbeam) , the Company advised employees that it would ‘work with the PTT to ensure a positive transition and cooperate with the PTT to institute initiatives to ensure an orderly and efficient changeover of the operation of the venues.’ Employees were informed that it was ‘vital’ that they ‘continue to perform their duties to the high standards in line with our current reputation’ until 31 December 2014. Employees were also advised of the creation of a ‘Joint Transmission Committee’ comprising executives of the Company and the PTT to ‘facilitate the transition and changeover’. Employees were instructed that ‘all communications in relation to the changeover would flow from the Joint Transmission Committee’ and that employees ‘should not initiate communications with the PTT in relation to changeover issues, including future employment opportunities, other than through the communications channel established by the committee.’
11 On 6 May 2014, the Company also wrote to food and beverage staff of the Company (including Mr Timour) advising that the PTT would be requesting ‘the future (food and beverage) operator offer employment to current food and beverage staff’. This letter followed the decision of the PTT not to assume for itself the catering function (which had been done by the Company) but to sub-contract catering operations from 1 January 2015.
12 In early July 2014 Mr Timour attended a meeting with Ms Fiona Lealiifano (a human resources manager employed by the Company)(Ms Lealiifano). Also present at the meeting was Mr Nigel Watson, the food and beverage general manager of the Company. There is a dispute about what was said at the meeting. Mr Timour’s evidence was that he was told by Ms Lealiifano that so long as he continued to perform his usual duties until 31 December 2014, he would on that date receive a redundancy payment of $18,080.76 from the Company and, in addition, there was a possibility that he would be employed by the (new) food and beverage manager appointed by the PTT. The Company contends that Ms Lealiifano did not state that the Company would make a redundancy payment. Mr Pilbeam gave evidence that Ms Lealiifano was familiar with clause 12.3 of the Management Agreement and was aware that the PTT had (at a meeting between executives on 17 April 2014) reserved its position on whether it would reimburse the Company for redundancy payments to Company employees. I am satisfied that Mr Timour’s account of the statements made by Ms Lealiifano is accurate. He gave direct evidence of the conversation. Mr Pilbeam was necessarily required to re-construct what he believed Ms Lealiifano would have said given Company policy and her knowledge. Further, as noted above, to the knowledge of the Company and Mr Timour, the PTT did not propose to employ any food and beverage staff of His Majesty’s Theatre. Mr Timour’s account of what was said by Ms Lealiifano is consistent with the text of clause 12.3 of the Management Agreement (‘appropriate compensation as a cost to the trust’ to be paid to an employee who was not employed by the trust) and the position of the Company in its negotiations with the PTT on the obligations of the PTT to employees of the Company. Finally, another employee of the Company in a similar circumstance to Mr Timour, Mr David Thornbury, gave evidence of a similar conversation with Ms Lealiifano in a July 2014 meeting with her.
13 In December 2014, Mr Timour successfully applied to the PTT for the position of event services manager. His employment by the PTT started on 2 January 2015 on a salary of $86,000 per annum. His employment is for a fixed term of three years. The terms and conditions of Mr Timour’s employment by the PTT do not include recognition of an period of his employment by the Company for the purpose of calculating his employment entitlements as an employee of the PTT.
First Issue: Was Mr Timour’s Employment Terminated ‘at the Employer’s Initiative’
14 An entitlement to redundancy pay under s 119(1)(a) of the FW Act only arises if the employment of the employee has been terminated ‘at the employer’s initiative’. The Company argues that the above findings demonstrate that the cause of the termination of Mr Timour’s employment was a process initiated by the PTT in ending the Management Agreement. Accordingly, it is said that Mr Timour’s employment was not ended by the Company. I do not agree. First, as a matter of law, s 119(1)(a) contemplates the termination of employment by one or other of the parties to the employment relationship ie the employer or the employee and not termination by the conduct of a third party. Termination by the employer may give rise to an entitlement to redundancy whereas termination by the employee does not give rise to an entitlement. Cases on that section have noted that it is the conduct of those respective parties which must be considered. The relevant text was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 [205] in which it was held that a termination at the initiative of an employer occurs when ‘the act of the employer results directly or consequentially in the termination of the employment’. Secondly, as a matter of fact it was the communications of the Company, in writing and in person, in April, May and July 2014 to Mr Timour that initiated the termination of his employment.
Second Issue: Was Termination ‘Due to the Ordinary and Customary Turnover of Labour’?
15 In Schedule 1 of these reasons I summarise the provisions of the FW Act on the entitlement to redundancy pay and a number of cases that have interpreted the exception to the entitlement to redundancy pay where the termination is ‘due to the ordinary and customary turnover of labour’. I note that it is necessary to examine all of the particular circumstances of the matter including the normal features of the employer’s business and the business circumstances of the employer. I also note that the ‘ordinary and customary turnover of labour’ may occur from loss of third party contracts held by an employer in circumstances where such turnover is a normal feature of the business.
16 The Company submits that it falls squarely within the ‘ordinary and customary turnover of labour’ exception. It says that the termination of Mr Timour’s employment was a normal feature of the business of the Company upon the loss of a contract with a third party, the PTT. The Company places emphasis on an analogy with the facts and findings in Compass Group (Australia) Pty Ltd v National Union of Workers [2015] FWCFB 8040. The Company draws attention to the circumstances which favour this characterisation of the Company’s operations and the termination of Mr Timour’s employment. It notes that the PTT was the sole customer of the Company for a series of fixed contractual periods from 1999 until 2014. There was a risk of the Company’s sole customer relationship ending at the end of each fixed term and, with that, the end of the business activity of the Company. It draws attention to the contents of the PTT termination clause found in the 2007 Employment Contract. The clause specifically adverts to the termination of Mr Timour’s employment in the event of the Management Agreement not being renewed. The facts relied upon to make these valid arguments are accurate. Nevertheless, the Company has not satisfied me that the termination of Mr Timour’s employment was due to the ordinary and customary turnover of labour. My reasons appear below.
17 Apart from the existence of the PTT termination clause (discussed below), there is no evidence that in the 12 years that Mr Timour was employed by the Company that anyone ever suggested to him or to any employee of the Company that there was a risk of the Management Agreement coming to an end or that there was a risk of a loss of employment when the Management Agreement came to an end. Mr Pilbeam gave evidence about certain activities in which he was involved in other places in Australia and internationally which involved employee terminations at the end of third party contracts. However, the evidence on the activities of the Company (i.e. the respondent in this case) is that, since 1999, the effect of the Management Agreement had been that no employee had ceased employment or been informed that there was a risk of ceasing employment. For a period of 15 years (from 1999 until April 2014), there was no customary history of regular or frequent employee dismissals or of communications from the Company to employees about the status of the Management Agreement giving rise to a risk of ceasing employment. Mr Timour had a settled expectation, arising from the duration of the Management Agreement, of continuing employment.
18 The PTT termination clause contains reference to the possibility of Mr Timour’s ongoing employment ending if the Management Agreement is not renewed by the PTT. It could be argued that the effect was to ‘disturb’ any ‘settled expectation of continuing employment’ enjoyed by Mr Timour. However, the text of the clause is concerned with ‘notice of termination’ and not with redundancy. Another clause ‘Retrenchment’ (noted above) makes reference to the possibility that ‘the employee’s position becomes redundant’ and to entitlements to redundancy being ‘as per the terms of any statutory requirements’. The combined effect of the two clauses was to not disturb the impression held by employees including Mr Timour and created by 15 years of the Company’s business operations i.e. those operations would continue.
19 Further, the conduct of the Company between April 2014 and December 2014 reflected the Company’s knowledge of the content of clause 12.3 of the Management Agreement to the effect that an employee in the position of Mr Timour would, if the Management Agreement expired, receive either ‘appropriate compensation’ or continued employment with the PTT or a succeeding manager. I have made a finding on what Mr Timour was told in his meeting with Ms Lealiifano. It is not necessary and not appropriate for me to make a finding on whether the phrase ‘appropriate compensation’ in clause 12.3 includes redundancy entitlements of employees. Nor is it necessary or appropriate for me to offer a view on whether or not the Management Agreement anticipates that the PTT would recognise an employee’s service with a view to the Company being able to take advantage of s 122(3) of the FW Act. The significance of clause 12.3 for my purposes is not the resolution of those questions of construction, but that the clause confirms that Mr Timour would remain in employment (or that some measure of his entitlements would be preserved) when the Management Agreement ended. The Company’s knowledge that he would remain in employment (or receive appropriate compensation) is antithetic to a finding that his termination of employment was in the ordinary and customary turnover of labour of the Company.
Issue Three: Employment for a ‘Specified Task’?
20 In Schedule 1 of these reasons I summarise the provisions of the FW Act on the entitlement to redundancy pay and the exception to the entitlement to redundancy pay where employment was for a ‘specified task’. I note that the exception often arises where a specific term of the contract of employment identified a discrete task to be done by an employee and which was distinguishable from the overall project of the employer.
21 The Company submits that the specified task for which Mr Timour was employed was providing services under the Management Agreement held by the Company with the PTT and that, on the Management Agreement ending, the specified task ended. The submission cannot succeed in the face of the terms and conditions of Mr Timour’s employment. His ‘task’ was to perform the duties required of the venue food and beverage manager at His Majesty’s Theatre. Of its nature, this task was of indefinite duration. There was no measure of when the task finished and it was coextensive with the ‘project’ of the Company, being the supply of venue management services to the PTT.
Conclusion
22 The Company has failed to satisfy me that either of the exceptions apply. Mr Timour is entitled to a redundancy payment calculated in accordance with s 119(2) of the FW Act. It is not in dispute that his entitlement, reflecting 12 weeks’ pay as the result of having had continuous service of at least 10 years is $18,080.76. There will be an order accordingly.
23 Section 547(1)(2) of the FW Act provides, in effect, that when making an order that an employer pay an amount to an employee the court ‘must, on application, include an amount of interest on the sum ordered unless good cause is shown to the contrary’. I will hear from the parties.




M. FLYNN
INDUSTRIAL MAGISTRATE
Schedule 1 Sections 119-122 of the FW Act: Redundancy Pay
The Entitlement
1. An employee is entitled to redundancy pay if the employee’s employment is terminated at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone: FW Act, s 119(1)(a). The entitlement is subject to exceptions, exclusions, and provisions concerning variation of the entitlement and transfer of employment situations (discussed below).
2. The basis for the entitlement – because the employer no longer required the job to be done by anyone - draws upon a concept “redundancy” formulated by Bray C J in RV Industrial Commission of South Australia; ex parte Adelaide Milk Cooperative (No 2) [1977] 46 SAIR 1202, 1205: “a job becomes redundant when the employer no longer desires to have it performed by anyone”. In Hodgson v Amcor Ltd; Amcor Ltd v Barnes [2012] VSC 94at [371] Vicory J, identifies frequently encountered circumstances when a job may cease including reorganisation (resulting in a job no longer being performed at all or being redistributed among other employees), mechanisation, change in demand or other reason or the employer no longer desires to have it performed by anyone.
3. The quantum (amount) of redundancy pay is worked out using a table set out at s 119(2) of the FW Act. The effect is that for continuous service of at least:
· One year but less than two years, four weeks’ pay;
· Two – three years, six weeks’ pay;
· Three – four years, seven weeks’ pay;
· Four – five years, eight weeks’ pay;
· Five – six years, 10 weeks’ pay;
· Six – seven years, 11 weeks’ pay;
· Seven – eight years, 13 weeks’ pay;
· Eight – nine years, 14 weeks’ pay;
· Nine – 10 years, 16 weeks’ pay;
· At least 10 years, 12 weeks’ pay.

Exceptions and Exclusions
4. The entitlement to redundancy pay does not arise where the termination is:
· ‘Due to the ordinary and customary turnover of labour’ (discussed below): FW Act, s 119(1)(a).
· Of an employee who was employed ‘for a specified period of time, for a specified task, or for the duration of a specified season’ (discussed below): FW Act, s 123(1)(a).
· ‘Because of serious misconduct’ of the employee: FW Act,s 123(1)(b).
· Of an employee who is a ‘casual employee’: FW Act,s 123(1)(c).
· Of an employee who is an apprentice or to whom an industry-specific redundancy scheme applies: FW Act, s 123(4).
· Of an employee whose period of continuous service is less than 12 months: FW Act, s 121(1)(a).
· By an employer who is a small business employer: FW Act, s 121(1). A ‘small business employer’ is an employer who employs fewer than 15 employees: FW Act, s 23(1).
Provision for Variation
5. An employer may apply to the Fair Work Commission for a determination that the amount of redundancy pay be reduced if the employer has obtained other acceptable employment for the employee or the employer cannot pay the redundancy pay to which the employee is entitled: FW Act, s 120.
Transfer of Employment Situations
6. An employee is not entitled to redundancy pay by reason of the transfer of employment (as defined) between associated entities (as defined): FW Act, s 122(2). This provision contemplates service with the first employer counting as service with the second (associated) employer: FW Act, s 22(5).
7. An employee is not entitled to redundancy pay upon a transfer of employment (as defined) if the employee rejects an offer by the second employer that is substantially similar to and no less favourable than the employee’s terms and conditions of employment with the first employer and the second employer recognises the employee’s service with the first employer: FW Act, s 122(3).
Termination ‘due to the ordinary and customary turnover of labour’
8. The entitlement to redundancy pay does not arise where the termination is ‘due to the ordinary and customary turnover of labour’: FW Act, s 119(1)(a).
9. The exception originates in a decision of the Industrial Commission of New South Wales in Shop Distributive and Allied Employees’ Association (NSW) and ors v Countdown Stores and ors [1983] 7IR273 (the ‘Crocker case’). For the purpose of determining the criteria for redundancy payments provided by the Employment Protection Act 1982 (NSW), Fisher J noted that certain employees (‘particularly in the building construction, contracting and sub-contracting industries’) were employed on terms and conditions, including rates of pay, that contemplated intermittency in employment. Fisher J considered that redundancy payments would be inappropriate as involving ‘an element of double counting’. Another category of employees where redundancy payments were considered inappropriate was said to be employees dismissed because of ‘seasonal shifts in markets, loss of contracts or changes in contract not relating to recession, changes in model or product, shifts in marketing emphasis and many other day-to-day causes’. This category was distinguished from dismissals where redundancy pay was appropriate with examples offered including ‘collective dismissals from force of adverse economic circumstances or arising out of technological change or out of major company restructuring'.
10. The issue was considered by the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy cases: Termination, Change and Redundancy Case (1984) 8 IR 34 (‘TCR case’), and Termination, Change and Redundancy Case (1984) 9 IR 115 (‘second TCR case’). In the second TCR case the Full Bench cited with approval the reasoning of Justice Fisher in the Crocker case to the effect that redundancy pay should not apply to the ‘ordinary and customary turnover of labour’. The Full Bench also noted that it did not intend that redundancy pay apply where ‘termination is due to a normal feature of a business’.
11. The Crocker case, the TCR case and the second TCR case are significant when interpreting the phrase in the FW Act: Compass Group (Australia) Pty Ltd v National Union of Workers [2015] 253 IR 32; [2015] FWCFB 8040 (‘the Compass Group case’). The relevant enquiry is whether an employer no longer wanted the job then being done by the relevant employee to be done by anyone or whether the employment was coming to an end ‘due to the ordinary and customary turnover of labour’. The outcome of the enquiry is dependant upon an analysis of all of the particular circumstances of the matter: Transport Workers’ Union (NSW) v Veolia Environmental Service (Australia) Pty Ltd [2013] NSWIRComm 22 (the Veolia case); the Compass Group case. It is necessary to consider the ‘normal features of the employer’s business’ and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business: the Veolia case. The focus is on the business circumstances of the employer: the Compass Group case; Dean Woodcock v Spotless Management Services [2017] WAIRC 7.
12. The ordinary and customary turnover of labour may occur from loss of third party contracts by an employer where such turnover is a normal feature of the business. The cases suggest that of relevance in determining this issue will be whether:

· It was customary to dismiss employees regardless of their service history upon the loss of contracts: the Compass case.
· There is a ‘known or understood lack of continuity of work’ by both employers and employees: the Compass case; the Veolia case [74]. The content of the terms and conditions of employment may inform whether there is a known lack of continuity of employment. For example, in Bennetts v Western NSW Medicare Local Ltd [2015] FWC 6517, it was held that there was no entitlement to redundancy pay where the contract of employment stated: ‘the parties acknowledge’ that the employer ‘relies on the continuance or renewal of periodically rotating (government) contracts’ and ‘it is part of the ordinary and customary turnover of labour that employees will from time to time cease employment because funding ends’ and redundancy pay is not payable’. See also the ‘policy instruction’ given at the commencement of employment in Kilby v MSS Security [2014] FWC 7475.
· The employee had performed work at ‘other contract sites as well as the one for which the contract had been lost’: the Veolia case.
· The employee’s rate of pay was ‘loaded for the intermittency of his employment’: the Crocker case.
· There was a ‘settled expectation of continuing employment’ such expectation increasing with the length of employment: the Compass case [26]; the Veolia case [83]. The expectation may arise from the duration of the employer’s contract with a third party. In Sales v Compass Group (Australia) Pty Ltd [2012] SAIRC 28 it was noted that ‘given the lengthy period of over six years of continuous employment by [the employer], and the fact that [the employer’s] contract with the [third party] was of at least ten years duration prior to its termination’, the redundancy was not the result of the ordinary and customary turnover of labour.
Employed ‘for a specified period of time, for a specified task, or for the duration of a specified season’
13. An employee who was employed ‘for a specified period of time, for a specified task, or for the duration of a specified season’ is not entitled to redundancy: FW Act, s 123(1)(a).
14. In Dale v Hatch Pty Ltd [2006] FWCFB 922 the Full Bench of the Fair Work Commission considered the definition of ‘dismissed’ for the purpose of determining an appeal that invoked the ‘unfair dismissal’ protections found in Part 3 – 2 of the FW Act. Relevantly, section 386(2)(a) provides that a person has not been dismissed if the person was ‘employed under a contract of employment for a specified period of time, for a task, or for the duration for a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season’. The text of section 386(2)(a), creating an exception to the unfair dismissal protections in the Act is the same as the text found in section 123(1)(a), creating an exception to the entitlement to redundancy pay. The following principles emerge from the decision of the Full Bench (omitting citations):
· The ‘specified task’ must be a task of the employee and must not be confused with the task or project of the employer. The protection should not be available to an employee who undertakes only a specified task. However, it would be anomalous to restrict the protection after the specified task is completed and the employee moves onto another task in connection with the project of the employer. ‘Bearing in mind many projects undertaken by employers continue for many years, while employees come and go it would be equally anomalous to exclude the protection in connection to a particular project’ [8].
· The ‘specified task’ would usually be a specific term of a contract of employment or would be a matter of necessary implication [9].
· The task must be definite so that there can be no doubt when the task has been completed.
· A ‘project’ may equate to a ‘task’ but not if the project is the broader employer’s project [11].
· Examples of a specified task include an employee engaged to personally develop a piece of software for an employer with no software expertise and an employee engaged to undertake concrete finishing on a construction project: [12] – [13].
15. It is apparent that the subject matter of the contract of employment vis-à-vis the overall activities of the employer will be significant in determining whether or not an employee was determined for a specified task.