For an employer to be able to legitimately rely upon the “genuine redundancy’ jurisdictional defence to an unfair dismissal claim, the employer must, amongst other things, be able to demonstrate that it complied with the consultation provisions of an applicable modern award or enterprise agreement. This is no token requirement, and those instuments have variable consultation clauses. In other words what might be regarded as being required by one of them may well differ from what might be required by another. This potential for distinction is at the heart of the following reasoning from a recent unfair dismissal case.
“Did the Respondent comply with any obligation in a modern award or enterprise
agreement that applied to the employment to consult about the redundancy? (s.389(1)(b))
[21] The Applicant made extensive submissions asserting a failure by the Respondent to
consult with him (or consult with him appropriately) in respect of its decision to make his role
redundant.
[22] The statutory requirement under s.389(1)(b) requires a finding of fact, whereby the
section “is not made out unless the various requirements of the relevant consultation clause are
demonstrably discharged by the employer”.
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[23] The parties accept that the Electrical, Electronic and Communications Contracting
Award 2020 (Award) covered and applied to the Applicant at the time of his dismissal.
[24] Clause 27 of the Award relevantly requires consultation after an employer “makes a
definite decision to make major changes in production, program, organisation, structure or
technology that are likely to have significant effects on employees”. The phrase “significant
effects” is relevantly defined to include “termination of employment”.
[25] The consultation requirements under clause 27 of the Award are conditional upon the
relevant change being a “major” one that is likely to have “significant effects on employees”.
Determination of whether a change falls within this definition appears to be one of fact and
degree. As White J said in Port Kembla Coal Terminal Ltd v CFMMEU26:
“I do not regard a simple comparison between the number of employees to be
terminated, and the number of the employees in its workforce overall … as being
necessarily conclusive of the question of whether a change is “major”. Much may
depend on the circumstances of a given case including, for example, the seniority and
importance of the employees … , the extent to which … employees work in an
integrated or disconnected manner; the consequences for the continuing employees of
the redundancies and consequent terminations, as well as other matters”.
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[26] It has been said that reference to the plural “employees” rather than “employee” in
similarly worded clauses does not capture individual redundancies on the basis that individual
redundancies do not constitute a “major change” to the Respondent’s operations that impact
upon a collective of employees.28
[27] In this case, there was only one redundancy (i.e. the Applicant’s role) in a small business
of less than 10 employees. I do not accept, on the evidence before me, in the circumstances of
this case, that s.389(1)(b) of the Act is enlivened for consideration in these proceedings. In this
[2023] FWC 881
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regard, I find that, on the terms of clause 27 of the Award, by reference to the case law set out
in this decision:
a) The redundancy of the Applicant’s role in the Respondent’s business:
• was not a “major change” (i.e. the Respondent’s Director picked up work
allocated to the warranty repair work division (albeit with assistance from other
employees from time to time)); and
• did not have “significant effects” upon the Respondent’s remaining employees
on an individual or collective basis (i.e. there is no evidence of any effects let
alone significant effects flowing to any of the Respondent’s employees arising
from the redundancy of the Applicant’s role with the Respondent).
b) The Respondent has satisfied its Award obligations as to consultation concerning
the Applicant’s redundancy in that no Award consultations obligations arise for
determination in these proceedings.”
Williams v KTC Refrigeration & Conditioning Pty Ltd [2023] FWC 881 delivered 14 April 2023 per Boyce DP