Security contractor ordered to pay full entitlements despite employees taking on work with its successor
The Maritime Union of Australia (MUA) has successfully appealed an earlier Fair Work Commission (FWC) decision that saw 49 port security staff lose out on redundancy entitlements.
The workers had been employed by FBIS International Protective Services, which was contracted to supply security services to Asciano stevedoring operations at several port locations around Australia.
They were made redundant when FBIS lost its contract, from November last year.
FBIS had employed 70 full-time staff as part of the contract. Of these, 11 were offered other work within the company and four were paid their redundancies in full. The remaining staff found employment with the incoming contractor ACG National.
FBIS contended that it had sourced this ongoing employment for each of the affected staff, and was there by able to vary the prescribed redundancy payment to nil, or half in one individual’s case.
The staff were each employed in similar positions, on similar duties, at the same locations and with similar entitlements to their roles with FBIS, but did not carry over any long service or medical leave to the new company.
A single staff member was employed on different terms including a reduced basic salary – she was originally paid out 50 per cent of her redundancy entitlements.
The reduced payments were originally upheld by the FWC.
In his May 20 decision, Commissioner David Gregory notes that FBIS had actively worked to “obtain” employment for its outgoing staff.
“The evidence indicates there was a significant degree of contact, and in some cases negotiation, with the new contractor about engaging the employees, and on what terms,” he says.
That ruling was incorrect, a panel of FWC commissioners found on October 21.
It noted that FBIS “did not obtain employment with ACG for employees, rather it simply facilitated an invitation by ACG to the employees to apply for a position and undertake an interview”.
“In our view, the limited actions of [FBIS] fall well short of action which ‘causes acceptable alternative employment to become available to the redundant employee’ and the respondent was not a ‘strong, moving force towards the creation of the available opportunity’.”