In this matter, a dispute arose following the appellant’s decision to restructure its Community Safety Business Unit, resulting in the abolition of the Parking and Information Officer role held by the respondent. This restructure engaged the redundancy and redeployment provisions of the City of Stirling Inside Workforce Agreement 2019. Pursuant to the restructure, the appellant offered the respondent several alternative positions, including that of Community Patrol Officer. The respondent union contended that the positions offered did not constitute “suitable alternative employment” within the meaning of clause 10.4 of the Agreement and asserted that the respondent was entitled to redundancy pay under clause 10.7. 

The matter was referred to the Commission, in which the Commissioner determined that the position offered to the respondent was not suitable, having regard to differences in classification, salary, and required qualifications, as well as the circumstances pertaining to retraining. The Commissioner further found that the respondent was entitled to redundancy pay but concluded that the Commission lacked jurisdiction to make a binding declaration regarding redundancy entitlement.

The appellant appealed the Commissioner’s decision to the Full Bench, advancing several grounds:

1. The Commissioner erroneously applied a subjective test by considering the respondent’s personal circumstances, rather than the objective standard required for determining “suitable alternative employment” under the Agreement.
2. The Commissioner exceeded the Commission’s jurisdiction by interpreting the Agreement beyond the intentions of the parties and by considering factors not specified in clause 10.4.2.
3. The findings on redundancy amounted to the exercise of judicial power, which fall outside the Commission’s jurisdiction.
4. The Commissioner erred in concluding that a declaration of redundancy constituted a repudiation of the employment contract.

The Full Bench reviewed the construction of clause 10.4 of the Agreement, emphasising that its primary focus is on preserving employment, with redundancy intended only as a last resort. The meaning of “suitable alternative employment” under clause 10.4.2 requires an objective assessment, specifically comparing classification, salary, and status as defined in the Agreement. The Full Bench found that the Commissioner erred by considering extraneous factors such as work value, duties, and personal circumstances, which are not specified in clause 10.4.2. The Full Bench confirmed that, while the Commission may interpret industrial agreements as part of its arbitral function, it cannot make binding declarations of existing rights, as this would constitute the exercise of judicial power.

The Full Bench upheld the appeal, determining that the Commissioner erred by considering extraneous factors not specified in the Agreement and by applying a subjective rather than objective test to the assessment of “suitable alternative employment”. The Full Bench also agreed that the Commissioner was correct in finding that the Commission lacked jurisdiction to make a binding declaration regarding entitlement to redundancy pay.

Accordingly, the orders sought were not granted; instead, the decision was suspended and remitted for reconsideration in accordance with the Full Bench’s reasoning.

The decision can be read here.