This portion of an appeal decision in the Fair Work Commission contains very useful observations about the legal issues involved in determining “genuine redundancy” issues.
“[32] We commence by considering appeal ground 1(a). This ground concerns the Commissioner’s finding that the consideration in s 389(1)(a) was satisfied and the Respondent no longer required Mr Taumaunu’s job to be performed by anyone because of changes in the operational requirements of its enterprise. Having considered the material before the Commission, we consider that the Commissioner’s finding was open to her, having regard to the uncontested evidence of Mr Miller that there had been a downturn in work, such that the Respondent could not sustain the roles of its 13 permanent employees. The matters advanced by Mr Taumaunu do not provide a sufficient basis for overturning the Commissioner’s factual findings, nor is there any basis for concluding that the changes made by the Respondent were not genuine responses, directed towards addressing its operational needs. Section 389 of the Act was recently considered by the High Court in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. Steward J relevantly explained as follows:14
128 Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person’s job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
129 The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed “because of changes in the operational requirements of the employer’s enterprise”. However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer’s “enterprise” which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer’s “prerogative”. As Ryan J observed in Jones v Department of Energy and Minerals:
“[I]t is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly- created positions.”
(citations omitted)
[33] In our view, the Commissioner correctly approached Mr Taumaunu’s contention that his job was still required, because his duties were being performed by casual employees. As the plurality in Helensburgh Coal said, s 389(1)(a) “does not look to whether the employee’s position, in terms of job title, was no longer required, but whether their “job”, in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else”.15
[34] The fact that the duties of a particular job or position which has been abolished have been reallocated to another position or positions as part of an employer’s restructure, does not, of itself, alter the fact that the employer no longer requires that job to be performed by anyone.16 Simply because some aspect of the employee’s duties is still required to be performed by somebody does not mean the employee cannot be redundant.17 Where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. In Mr Taumaunu’s case, although some of the tasks previously assigned to him still had to be carried out, the distribution of those duties provided an evidentiary foundation for the Commissioner’s conclusion that his former position was rendered surplus because of changes to the Respondent’s operational needs.
[35] In support of appeal ground 1(b), Mr Taumaunu contends that there was no effort by the Respondent to redeploy him. The evidence at first instance, which the Commissioner accepted, was that the only available positions to which the relevant employees could be redeployed were to casual roles. Mr Taumaunu was offered this option but declined to accept it. We are not persuaded that Mr Taumaunu has demonstrated that the Commissioner erred when she concluded that the Respondent complied with its obligation under s 389(2). However, for completeness, we note that the Commissioner’s statement in the final sentence of paragraph
[43] misstates the statutory test, which is not whether the Respondent considered all reasonable options for redeployment, but rather whether it would have been reasonable in all the circumstances for the person to have been redeployed within the employer’s enterprise, or the enterprise of an associated entity.18 This is not an error that gives rise to appealable error in this case, noting that the Commissioner correctly set out the statutory test at paragraph [41] of the decision and applied it – in our view, correctly – to the circumstances before her. It follows that we reject appeal ground 1.
[36] Appeal ground 2 concerns Mr Taumaunu’s submission that the Respondent failed to consult both with him and the union. Mr Taumaunu contends in his further submissions that the Respondent did not comply with its consultation obligations and the Commissioner “gave no weight” to this failure in her consideration of whether the requirements of s 389(1)(b) were met.’
[37] So far as the Commissioner made findings about the extent of the Respondent’s
consultation with Mr Taumaunu, those findings were as follows:19
(a) Mr Miller sent a text message on 19 November 2024 to all of the Respondent’s permanent employees, including Mr Taumaunu, advising that “from today we are unable to maintain all full-time positions” and that as a result, “we are implementing options” being the reversion to casual employment or “if you prefer, we can proceed with making your position redundant”.
(b) Mr Taumaunu telephoned Mr Miller upon receiving the 19 November 2024 text message was advised that “it was nothing to worry about” and that “everyone was receiving the same notice”.
(c) It was “common ground” that no further discussions were held between the respondent and Mr Taumaunu, other than an unrelated exchange regarding payment of a parking fine.
(d) Mr Miller re-sent the content of the 19 November 2024 text message in an email to all permanent employees of the respondent, including Mr Taumaunu, on 10 December 2024.
(e) Mr Taumaunu had a discussion on 12 December 2024 with the respondent’s union delegate who “confirmed to me her belief that the redundancy was genuine and shortage of work meant everyone would be going back to casual employment”.
(f) Mr Taumaunu telephoned Mr Miller on 13 December 2024 who confirmed that Mr Taumaunu’s position was being made redundant but that he could remain employed as a casual employee if he wished.
(g) Mr Taumaunu emailed Mr Miller on 13 December 2024 choosing the option to be made redundant.
[38] The respondent contends that, in addition to the above matters, Mr Miller’s evidence during the first instance proceedings was that a definite decision was not made until December 2024. It says that, in these circumstances, the Commissioner’s ultimate conclusion that the respondent had complied with the consultation provisions of the Agreement was not erroneous. However, the decision does not record that the Commissioner made any findings of fact as to the date the respondent made a definite decision to implement the redundancies. Nor do we consider Mr Miller’s oral evidence to be determinative of this matter in any event.
[39] Appeal ground 2(a) concerns Mr Taumaunu’s contention that the respondent failed to adhere to its consultation obligations under clause 10 of the Agreement. As earlier stated, the Commissioner relevantly summarised the obligations under clause 10 of the Agreement as two- fold:
[35] …The requirements of clause 10 are twofold. Firstly, United are required to consult with the Union and secondly, they are required to discuss the change with the relevant employee. Clause 10.5 further provides that they are to provide employees with written advice regarding the nature of the change proposed. Information about the expected effects of the change on the employees, and any other matters likely to affect the employees….
[40] For the reasons that follow, we do not consider that the above provides an accurate summary of the respondent’s obligations under the Agreement.
[41] Clause 10.3 requires the respondent to notify affected employees and the union if it is considering making a decision to introduce major change, and prior to such a decision being made. The evidence discloses that Mr Taumaunu was informed by text message on 19 November 2024 that effective “today,” the respondent was unable to maintain all of its full- time positions and accordingly, “we are implementing options for affected employees”. We do not consider this correspondence is capable of being construed as prior notification that the respondent was considering making a decision, as the respondent contends. In our view, it constitutes notification of a decision that had already been made, and which was being implemented from “today”.
[42] Prior to implementation, the respondent is required by clause 10.4 of the Agreement to discuss the introduction of the change, its likely effect on employees, and measures to avert or mitigate its adverse effects on the employees. The discussion between Mr Taumaunu and Mr Miller on 19 November 2024 followed the issuance of the text message and did not address any of the matters contemplated by clause 10.4 in any event. The evidence demonstrates that Mr Miller advised Mr Taumaunu that “it was nothing to worry about”. There is no other evidence of discussions between the respondent and Mr Taumaunu that we consider can be relied upon in compliance with clause 10.4.
[43] Clause 10.5 of the Agreement requires the respondent to provide the employees, the union and/or their nominated representatives written information about the change, its expected effects and any other matters likely to affect the employees. It is not in dispute that no further information was provided to Mr Taumaunu in writing about this matter until Mr Miller sent the 10 December 2024 email. That email replicated the content he had already provided in the 19 November 2024 text message. While the Commissioner found that both communications included information regarding the impact on employees, no findings were made as to whether the employees received, in writing, all relevant information about the change, and any other matters likely to affect the employees as required by clauses 10.5(a) and (c). We consider that the only available conclusion on the evidence is that Mr Taumaunu was not provided with information about these matters in writing as required by clause 10.5.
[44] The respondent submits that the Commission should also give weight to Mr Miller’s telephone call with Mr Taumaunu on 13 December 2024, which preceded Mr Taumaunu’s decision to take a redundancy. We accept, on the evidence, that the parties spoke on this date. However, the evidence indicates that the discussion was instigated by Mr Taumaunu and was limited to Mr Miller confirming orally with Mr Taumaunu – for the first time – that his position was being made redundant and the casual option was available to him. We do not accept that this single telephone conversation constitutes meaningful consultation prior to implementation of the decision as clause 10 of the Agreement requires. This would be the case even if the respondent had persuaded us that it did not make a definite decision until an unidentified date in December 2024.
[45] It follows that we consider that the Commissioner erred when she concluded in the decision that the respondent complied with the consultation provisions of the Agreement. The evidence before the Commission does not support a finding that clauses 10.3, 10.4 and 10.5 of the Agreement were satisfied, insofar as they impose obligations upon the respondent to consult with affected employees, and relevantly to the appeal, Mr Taumaunu. Accordingly, we uphold appeal ground 2(a). However, we are not similarly satisfied that the Commissioner erred when she found that the Respondent met its obligations under the Agreement to consult with the union prior to making Mr Taumaunu’s position redundant. There was an evidentiary foundation for this finding, having regard to Mr Miller’s uncontested evidence and noting the union’s assistance with the wording used in the 19 November 2024 text message. It follows that we reject appeal ground 2(b).
[46] The effect of our conclusion is that it was not open to the Commissioner on the evidence to reach a state of satisfaction that Mr Taumaunu’s dismissal was a genuine redundancy within the meaning of the Act. The appeal must be allowed and the order dismissing Mr Taumaunu’s unfair dismissal application quashed.
Conclusion and disposition
[47] For the reasons given, permission to appeal should be granted in respect of appeal grounds 1 and 2, the appeal allowed in respect of appeal ground 2(a), and the decision of the Commissioner quashed. Mr Taumaunu’s application for an unfair dismissal remedy under s 394 of the Act should be remitted to the Commissioner for further programming in light of our conclusion that his dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act.
[48] The Full Bench makes the following orders:
(a) Permission to appeal is granted in respect of appeal grounds 1 and 2;
(b) The appeal is allowed in respect of appeal ground 2(a);
(c) The decision of the Commissioner in [2025] FWC 1365 in matter number U2025/13 is quashed; and
(d) The application in matter number U2025/13 is remitted to the Commissioner for further programming.”
Appeal by Taumaunu v United Personnel Traffic Pty Ltd [2025] FWCFB 181 delivered 14 August 2025 per Gibian VP, Millhouse DP and Hampton DP