This decision of the Fair Work Commission is an excellent application of the fair work legal principles which are applied when determining whether the termination of employment of an employee constitutes a genuine redundancy and the employer is thus protected from a successful unfair dismissal claim.
“Application for an unfair dismissal remedy – genuine redundancy – jurisdictional objection upheld – application dismissed.
[1]
Mr Gary Brown (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), stating that he was unfairly dismissed from his employment with ISS Integrated Services Pty Ltd (the Respondent or ISS) on 8 August 2025. The relevant agreement at the time was the ISS Integrated Services Pty Ltd (BMA Sites) Enterprise Agreement 2012-2016 (the Agreement).
[2]
The matter was listed for a hearing on 10 February 2026. The Applicant and Respondent were self-represented with the Respondent represented by Mr Daniel O’Rourke as the Head of Workplace Relations.
[3]
Section 396 of the Act requires satisfaction of four eligibility requirements before the merits can be considered. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act. The Applicant was a person protected from unfair dismissal as he met the minimum employment period, was covered by the Agreement and earned less than the high-income threshold. The Respondent was not a small business employer. However, the Respondent had raised the jurisdictional objection that the Applicant was genuinely made redundant. Therefore, this jurisdictional objection will need to be determined before considering the merits of the matter.
Background
[4]
The Applicant worked for ISS in the Water Treatment Plant at Saraji Mine near Dysart in Queensland which is owned and operated by the BHP Mitsubishi Alliance. He was employed in the position of Water Treatment Plant Operator and has been employed by ISS from 1 October 2020 onwards. The Respondent was informed in early 2025 that the services contract that ISS provided for BMA in the Bowen Basin was going out to open tender, with employees notified in March 2025.
[2026] FWC 830
DECISION
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2
[5] The Applicant was stood down in March 2025 following a BMA Supervisor making a
complaint about the Applicant. Prior to that, the Applicant had made a complaint alleged
bullying behaviour by the BMA Supervisor. Following the investigation, the complaint against
the Applicant was dismissed. The Applicant returned to work in the last week of May 2025.
However, the Applicant then took a six-week holiday until the end of June 2025.
[6] Following the Applicant’s return to work following his holiday, the Applicant
subsequently provided a medical certificate (which later evolved into a WorkCover claim,
related to the bullying allegations described above) and was on leave from 1 July 2025.
[7] Following the tender process in late June 2025, ISS was informed another company won
the tender for services, therefore, the ISS’ services would be terminated on 31 August 2025.
The Applicant was still on leave when the ISS’ services contract was terminated.
[8] Following ISS being informed of the termination of their services contract, the
Respondent’s People and Culture Manager, Mr Craig Zubrinich, attended site from 8 July 2025
to 11 July 2025 to inform ISS employees about the termination of the ISS’ services contract
and advise them regarding the next steps such as support for the transition process and
redeployment opportunities. The Respondent also provided information and access to further
transition support, including access to a resume update service and contact details for
employment agencies in the region. Mr Zubrinich gave evidence that since the Applicant was
on leave; they only chose to contact him via email.
[9] On 8 July 2025, the Applicant received the following letter from the Respondent:
“Dear Gary,
RE: Termination of your employment with ISS Integrated Services
We regret to advise that ISS will cease being the provider of FM and WU services at
BMA effective from Sunday 31st August 2025.
We confirm that on completion of ISS providing FM and WU services at BMA on 31
August 2025 the client has decided to engage with a new contract provider.
This decision is not a reflection of the exceptional service that our team members have
been delivering at site.
We currently have limited opportunities for redeployment to other roles within ISS and
will discuss transfer opportunities with you directly.
As a result of our services ending at BMA your employment with ISS will cease on 31
August 2025, unless you accept an offer of redeployment (transfer) to an available
position identified for you.
It is important for you to understand that, unless you choose to resign prior to 31 August
2025, you will be required to continue to perform your duties in accordance with your
roster up to and including this date.
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If you are interested in employment with the incoming contractor please contact Melissa
Denham (Key Account Manager) at [email address redacted], who will then assist in
liaising with the incoming contractor regarding opportunities.
As ISS operates in the contracting services industry, we rely on our contracts with
clients to provide ongoing employment for our employees. Please note, in the event of
a contract loss, termination due to the ordinary and customary turnover of labour is
likely should you not obtain a position with the new service provider and we are unable
to find a suitable alternative position within ISS.
I would like to personally thank you for your dedication, hard work and contribution to
the team at ISS over the life of our contract with BMA. You will be paid out any accrued
annual leave and long service leave (if applicable) following your termination of
employment.
We understand this may be a difficult time for you and take this opportunity to remind
you of ISS’ Employee Assistance Program via Telus Health on [redacted] . This service
provides confidential counselling and support to staff and their immediate families.
We will continue to keep you updated throughout the transition period and should you
have any questions please don’t hesitate to contact your Melissa Denham (Key Account
Manager) at [email address redacted] or phone [redacted].”
[10] The Applicant says he had attempted to discuss his return to work in July 2025,
including by attempting a shift swap so he would not be on a shift with the BMA supervisor he
alleged had bullied him, but the shift swap offer was rejected.
[11] On 16 July 2025, the Respondent was sent a further letter to the Applicant advising that
the Applicant’s details would be passed onto the incoming contractor on site, LMP Project
Services (LMP), unless the Applicant did not consent to that. The letter also identified three
open trades-based roles with the Respondent, which were all fly-in-fly-out (FIFO) roles
operating out of Perth. The letter advised that if these roles aligned with the Applicant’s
qualifications and interests, he should contact the recruitment team.
[12] On 14 August 2025, Applicant was advised that he was unsuccessful in obtaining a
position with LMP as the incoming contractor. The Applicant alleges that he was unsuccessful
because of the complaint he had lodged about the BMA supervisor.
Is there a genuine redundancy under s.389(1) of the Act?
[13] Under s.396 of the Act, I am required to consider whether the redundancy was a genuine
redundancy before considering the merits of the application.
[14] The requirements of genuine redundancy prescribed under s.389 of the Act are:
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1. The role was no longer required to be performed by anyone because of changes
in the operational requirements of the employer’s enterprise1;
2. The Employer had complied with obligations for consultation under the
applicable Enterprise Agreement or applicable Modern Award2; and
3. The offer of redeployment was reasonable in all the circumstances.3
Consideration
1. Was the Applicant’s employment no longer required to be performed by anyone because
of changes in the operational requirements of the employer’s enterprise?
[15] In Helensburgh Coal Pty Ltd v Bartley & Ors (‘Helensburgh’)4, the majority of the High
Court held as follows:
“[30] Section 389(1) of the FW Act defines “genuine redundancy”. Unless that provision is satisfied,
s 389(2) is not reached. Although there was no dispute that s 389(1)(a) and (b) was satisfied in
this case, it is necessary to say something further about s 389(1)(a). It is a factual inquiry about
what happened. The first part of s 389(1)(a) turns on the existence of a decision in fact made by
an employer. It is the employer’s decision to no longer require a person’s job to be performed
by anyone. The provision 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.
[31] The second part of s 389(1)(a) provides that the job must have ceased to be needed “because of
changes in the operational requirements of the employer’s enterprise”. An employer determines
what those changes might be or if they are needed. There is no reasonableness inquiry in s 389(1).
Therefore, the fact that the employer, due to changes in operational requirements, no longer
required the work to be performed by anyone need not have been reasonable.”
(citations omitted, emphasis added)
[16] In Ulan Coal Mines Limited v Howarth and others,5 the Full Bench considered
redundancy where the job as a collection of “functions, duties and responsibilities” becomes no
longer required:
“It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to
be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job
involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the
employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set
of circumstances where an employer might 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. In these circumstances, it was
said that:
1 Fair Work Act 2009 (Cth) s 389(1)(a).
2 Ibid s389(1)(b).
3 Ibid s389(2)(a)-(b).
4 [2025] HCA 29 (‘Helensburgh’).
5 [2010] FWAFB 3488 at [17].
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‘What is critical for the purpose of identifying a redundancy is whether the holder of the former
position has, after the re-organisation, any duties left to discharge. If there is no longer any
function or duty to be performed by that person, his or her position becomes redundant…’ (at
p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he
or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The
examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a
particular employee continue to be performed by other employees but nevertheless the “job” of that
employee no longer exists.”
[17] The Applicant argued that his role was still required as the work still needed to be
performed on site. That is true, of course, but that argument misunderstands the statutory test.
The question is whether the Applicant’s employer no longer requires the job to performed by
anyone because of operational requirements.
[18] The Respondent noted that they have other contracts on mine sites in Queensland, but
those roles were not trades-based, like the Applicant’s. The Respondent said those contracts
were roles within mining camps, such as, chef and cleaner roles, rather than “blue collar
labour”. The Respondent did not require the Applicant’s job as a Water Treatment Plant
Operator to be performed by anyone, as the Respondent no longer had a contract to perform
those water treatment services for BMA.
[19] I am satisfied that the Respondent no longer required the Applicant’s role to be
performed by anyone because of operational requirements because the Respondent no longer
had the commercial contract which underpinned the work, which is a sound operational reason.
For the purpose of s.389(1), it does not matter that the successful tenderer required a job with
similar or identical duties. The successful tenderer is not an associated entity of the Respondent,
nor was it connected to the Respondent.6
2. Did the Respondent comply with any obligations in a modern award or enterprise
agreement that applied to the employment to consult about redundancy?
[20] The Applicant’s employment was covered by an Agreement, of which the model
consultation term was taken to be a term of the Agreement on approval. That term states:
“(1) This term applies if:
(a) the employer has made a definite decision to introduce a major change to production,
program, organisation, structure, or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees of the enterprise.
(2) The employer must notify the relevant employees of the decision to introduce the major change.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
6 Transcript PN205-207
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(a) a relevant employee appoints, or relevant employees appoint, a representative for the
purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change
on the employees; and
(b) for the purposes of the discussion — provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change
proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information
to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change
by the relevant employees.
(8) If a term in the enterprise agreement provides for a major change to production, program, organisation,
structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses
(2), (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the
skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for
promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
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(10) In this term, relevant employees means the employees who may be affected by the major change.”
[21] The Applicant stated in his submissions that:
“11. The Respondent asserts that it complied with consultation obligations. However,
consultation was procedural only and occurred after decisions had effectively
been predetermined.
12. During the consultation period, the Applicant raised:
• concerns regarding workplace safety following substantiated bullying by his
manager;
• medical advice that he could not safely work under that manager; and
• requests for reasonable adjustments to enable continued employment.
13. The Respondent did not meaningfully engage with these matters, nor did it
demonstrate that the Applicant’s input could influence the outcome.”
[22] The Applicant argues that the consultation occurred after the “decisions had effectively
been predetermined.” That is not true, in my view. A decision to terminate the services contract
had been “predetermined”, but it was not the Respondent’s decision, it was BMA’s. The
Respondent is not required, as part of consultation under this clause, to reverse a commercial
decision made by a different entity. It had no power to do that, anyway. The purpose of
consultation under the consultation clause is to mitigate the effects of the major change on the
employee, after the decision to introduce the change had already been made. The Applicant
could have engaged with the Respondent regarding its vacant trades-based roles in Perth, but
he chose not to.
[23] I consider that the Respondent provided satisfactory evidence that it had met the
consultation requirements. The cancellation of the services contract was formally
communicated to employees shortly after the Respondent was advised of the decision. Mr
Zubrinich also submitted that employees was already aware of the tender process prior to any
decision being made. The Respondent had communicated the effects of the cancellation on
employees, being that their roles on site were no longer required. The Respondent also provided
assistance to mitigate the effects of the change by giving the incoming contractor the details of
affected employees, providing the details of two employment agencies and providing a resume
update service. Additionally, the Respondent also identified vacant trades-based roles available
within ISS, noting that they were FIFO roles based out of Perth.
[24] The Applicant’s submissions conflate the Applicant’s workers compensation claim and
requests for adjustments to return to work with consultation requirements for major change
under the agreement. These are two separate issues.
[25] The Applicant provided short statements of other employees of the Respondent who he
said were not selected for the role with the new contractor due to having issues with a BMA
supervisor. He alleges that he was put on a “no hire” list. The Applicant proposes an alternative
scenario, where if he had returned to work prior to the contract ending, he might have been
selected for the role with the new contractor, LMP. However, this is all speculation. The
Respondent provided the Applicant’s name to the incoming contractor, but they did not control
[2026] FWC 830
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who the incoming contractor selected. The Applicant’s arguments are two steps removed from
the issue at hand.
[26] During the hearing, the Applicant did not point to any response he provided to the
consultation letter, he just said he was focussed on working for LMP and had completed an
online application process with them in August 2025. Further, the Applicant confirmed he had
not applied for the Respondent’s roles in Perth nor contacted the employment agencies offered
as he was “under stress at the time and did not see the option in contacting them”.
[27] I find that the Respondent met their consultation obligations.
3. Was it reasonable in all the circumstances for the person to be redeployed within, (a)
the employer’s enterprise; or (b) the enterprise of an associated entity of the employer?
[28] In Helensburgh7, the majority of the High Court held as follows:
“[32] Section 389(2) then provides a protection for the dismissed employee and provides that
protection by posing a “counter-factual”. It provides that notwithstanding that the employer no
longer required the dismissed employee’s job, namely their work or their duties, to be performed
by anyone because of changes in the operational requirements of the employer’s enterprise, the
person’s dismissal was nonetheless not a case of genuine redundancy “if it would have been
reasonable in all the circumstances for the person to be redeployed within … the employer’s
enterprise” (emphasis added).
[33] Unlike s 389(1), s 389(2) is qualified by a requirement of reasonableness. A person’s dismissal
was not a case of genuine redundancy “if it would have been reasonable in all the circumstances
for the person to be redeployed”. The language is broad.
[34] Nonetheless, the range of the inquiry permitted by s 389(2) is limited in the sense that the inquiry
is in respect of the employer’s (or an associated entity’s) “enterprise” and that the redeployment
of the person must have been reasonable “in all the circumstances”…
[35] First, the employer’s “enterprise” in s 389(2) is its “business, activity, project or undertaking”.10
This provides the scope of the inquiry under s 389(2). It is not appropriate for the FWC to
disregard the very nature of the employer’s enterprise. It cannot, for example, change the nature
of the business, activity, project or undertaking of the employer’s enterprise. The nature of the
employer’s “enterprise”, however, is not defined by reference to how the employer uses its
workforce to operate its enterprise, or why it does so in that manner.11 Such circumstances are
not the “business, activity, project or undertaking”.
[36] Second, the inquiry is whether it would have been reasonable in all the circumstances for the
person to be “redeployed” within the employer’s enterprise. “Redeployed” does not require there
to be a vacant position. The word “redeploy” does not, by its ordinary meaning, exclude or
prohibit some change to how an employer uses its workforce to operate its enterprise that
facilitates redeployment. Indeed, the ordinary meaning of “redeploy” – “to rearrange, reorganise,
or transfer”12 – envisages some reorganisation or rearrangement. In other words, it does not
mean that it would only have been reasonable to redeploy the person if there was a vacant
position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not
refer to a “job”. The text of s 389(2) therefore does not, on its face, assume that a job is readily
available. Rather, “redeployed” looks to whether there was work, or a demand for work, within
the employer’s enterprise or an associated entity’s enterprise that could have been performed by
the otherwise redundant employee.
7 Helensburgh (n 6).
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[37] Third, the inquiry is whether redeployment “would have been reasonable”. The words “would
have been” direct the FWC to consider a hypothetical situation. A hypothetical is inherently a
consideration of a situation changed from what it was. The use of the past tense directs attention
to the situation at the time of the dismissal. The hypothetical inquiry under s 389(2) therefore
asks what, at the time of the dismissal, could have been done to redeploy the employee within
the employer’s enterprise.13 In other words, would it, at the time of the dismissal, have been
reasonable to redeploy the employee to perform other work within the employer’s enterprise.
[38] Fourth, the inquiry is a reasonableness inquiry. Reasonableness is an objective question to be
determined by the FWC. The inquiry does not look to reasonableness only from the point of view
of the employer, or only from the point of view of the employee (although they are relevant). It
is an inquiry as to reasonableness in the context of the employer’s enterprise, with regard to the
nature of that enterprise.
[39] Fifth, the inquiry is whether redeployment would have been reasonable in “all the
circumstances”. The words “all the circumstances” are unmistakably broad; they point against
the existence of binding rules concerning the application of s 389(2) in all cases irrespective of
the circumstances of each particular case. If there were circumstances that were intended to
inform whether, in any given case, redeployment would have been reasonable, the legislature
would not have used the qualifying phrase “in all the circumstances”.
[40] “[A]ll the circumstances” can include the attributes of the otherwise redundant employee, such
as their skill set, experience, training and competencies. “[A]ll the circumstances” can also
include those attributes of the employer’s enterprise that concern its workforce, such as: its
policies, including appetite for risk; plans; processes; procedures; business choices, such as a
decision to terminate a contract in the future and a decision to persist with using contractors;
decisions regarding the nature of its workforce, such as whether it has a blended workforce of
both employees and contractors; contract terms, such as whether they are “as needs” contracts
and whether the contractors are on daily work orders or on some long-term fixed commitment;
practical concerns, such as whether redeployment would require the employee to undergo further
training; and anticipated changes, such as another employee going on parental leave or retiring,
a contract expiring, or a position being performed by a contractor while waiting for an employee
to be hired. These are “circumstances” of how an employer uses its workforce to operate its
enterprise, or why it does so in that manner, which can, depending on the circumstances of the
case, bear on whether it would have been reasonable to redeploy an employee within the
enterprise. These circumstances are not directed at the size, scope or nature of the enterprise,
which are fixed at the date of dismissal.”
(citations omitted, emphasis added)
[29] The evidence provided by the Respondent indicates that they had limited trade-based
opportunities. The ones they did have were based in Perth which is on the opposite side of the
country to Townsville, where the Applicant is located. In the hearing, the Applicant said he did
not want to live in Perth. No other redeployment opportunities were identified by either the
Respondent or the Applicant. The Respondent’s other contracts in the Bowen Basin are very
different from the work the Applicant had been performing.
[30] The Respondent was not under any obligation to secure another opportunity with either
BMA, the host organisation, or LMP as the incoming contractor. Nevertheless, they provided
an employee list to LMP. Apart from the assertions of the Applicant, there is no evidence that
there was a “do not hire list”. The Respondent stated that it did not provide information about
bullying allegations or medical details to the incoming contractor.
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[31] The Applicant asked for a Jones v Dunkel8 inference as his manager, Ms Melissa
Denham did not provide evidence in this matter. Mr O’Rourke explained that Ms Denham had
been unwell, which is why she did not prepare evidence for this matter or appear. I find there
was an explanation for Ms Denham’s absence and therefore, no such inference was required to
be made.
[32] I find that it was not reasonable in all circumstances for the Applicant to be redeployed
within the Respondent or an associated entity’s enterprise. The only trades-based roles were
based in Perth, which the Applicant said he would not have accepted them based on their
location nor advised that he wished to apply for any other roles with the Respondent.
Conclusion
[33] I find the Applicant’s employment was no longer required to be performed because of
changes in the Respondent’s operational requirements due to the termination of the services
contract with BMA, that the Respondent complied with consultation obligations about
redundancy under the Agreement and that it was not reasonable for the Applicant to be
redeployed.
[34] Therefore, the Applicant’s dismissal was a genuine redundancy under section 389 of the
Act. Consequently, the jurisdictional objection is upheld, the merits of the application cannot
be considered, and the matter must be dismissed. I Order so accordingly.”
– Brown v ISS Integrated Services Pty Ltd [2026] FWC 830 delivered 27 July 2026 per Lake DP