Transport Workers' Union v Veolia Environmental Service (Australia) Pty Ltd [2013] NSWIRComm 22

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union v Veolia Environmental Service (Australia) Pty Ltd [2013] NSWIRComm 22 Hearing dates: 3 September 2012; Oral submissions 12 March 2013 Decision date: 27 March 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: Having regard to the determination of Mr Latai's entitlement to redundancy pay under the preserved award, the Court makes the following orders: (i) the respondent is to pay Mr Latai the equivalent of 20 weeks' pay, being severance pay due to redundancy under the provisions of the preserved collective State agreement, namely, the Collex Pty Ltd Domestic Waste Collection Divisional Agreement 2005/2008 and the incorporated terms of the Transport Industry - Redundancy (State) Award applying at 27 March 2006. (ii) in accordance with the provisions of s 547(2) of the Fair Work Act 2009, interest is to be paid in an amount agreed to by the parties and in the absence of agreement, as ordered by the Court. Catchwords: FAIR WORK ACT 2009 - s 44(i), s 119 - alleged redundancy in domestic waste collection industry - breach of preserved collective State Agreement by failure to pay redundancy - alternatively, failure to pay redundancy in accordance with Act - whether employee terminated due to the ordinary and customary turnover of labour - employer's contract with Local Council reaches term and not renewed - waste collection contracts in Local Government regularly turned over - employers practice to find other work within the business for employees when contract not renewed - no evidence of dismissal of employees in such circumstances - employee had reasonable and settled expectation of continuing work - employment not for fixed term or particular task or restricted to a particular Council contract - work not intermittent - termination of employment not due to ordinary and customary turnover of labour - employment governed by preserved collective agreement - employee entitled to 20 weeks redundancy pay Legislation Cited: Employment Protection Act 1982 (NSW) Fair Work Act 2009 Cases Cited: Briginshaw and Briginshaw (1938) 60 CLR 335 Crooks Michell Peacock Stewart Pty Ltd & ors v Watkins and ors (1984) 9 IR 182 Fashion Fair Pty Ltd v The Department of Industrial Relations (Inspector Rouse) (1999) 92 IR 271. Northwest Exports Pty Ltd v Coxon (1986) 15 IR 166 Norwest Beef Industries v Holsworth (1986) 15 IR 373 Re Application for Redundancy Awards re Transport Industry Mixed Enterprises Redundancy (State) Award; Re Clerks Redundancy (State) Award; Re Electricians etc State Redundancy Award (1994) 53 IR 419 Shop Distributive and Allied Employees' Association (NSW) and ors v Countdown Stores and Ors (1983) 7 IR 273 Tempo Services Ltd and T M Klooger and ors (Sydney, 19 November 2004. Australian Industrial Relations Commission, unreported Print PR953337). Termination, Change and Redundancy Case (1984) 8 IR 34 Termination, Change and Redundancy Case (1984) 9 IR 115 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Applicant) Veolia Environmental Service (Australia) Pty Ltd (Respondent) Representation: Mr A Hatcher SC (Applicant) Mr I Taylor SC (Respondent) Transport Workers ' Union of New South Wales (Applicant) M+K Lawyers(Respondent) File Number(s): IRC 423 of 2012