1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Justin Fisher; Mr Tim Bartlett; Mr Jason Evans; Mr Adam Kirton; Mr
James Davis; Mr Robert Shaw; Ms Julie-Anne Giffin
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788,
U2013/1793)
COMMISSIONER CAMBRIDGE SYDNEY, 22 NOVEMBER 2013
Applications for relief from unfair dismissal - jurisdictional objection - s.396 of Fair Work
Act 2009 - whether dismissals were cases of genuine redundancy - s.389 meaning of genuine
redundancy - elements which constitute genuine redundancy - redeployment circumstance of
each applicant considered separately.
[1] On 31 May 2013, the Construction, Forestry, Mining & Energy Union (CFMEU),
made applications for unfair dismissal remedy on behalf of inter alia, seven individuals who
had been employed by Downer EDI Mining (Downer Mining) at the Boggabri coal mine.
[2] The applications were made under s.394 of the Fair Work Act 2009 (the Act), and
numbered U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788,
U2013/1793, collectively referred to as “the applications”.
[3] The applications each nominated the date that the respective dismissal took effect to
be 17 May 2013. Therefore on their face, each application was made within the 21 day time
limit prescribed by subsection 394 (2) of the Act. One of the applications, U2013/1784 made
by Jason Evans, was challenged by Downer Mining to have been made beyond the 21 day
time limit prescribed by subsection 394 (2) of the Act.
[4] All of the applications were the subject of jurisdictional challenge made by the
respondent Downer Mining, upon the assertion that each of the applicants’ dismissals was a
case of genuine redundancy. Consequently, Downer Mining advanced jurisdictional challenge
to the applications relying upon the requirements of subsection 396(d) of the Act which
stipulates that the Fair Work Commission (the Commission) must decide whether the
dismissal was a case of genuine redundancy before any consideration of the merits of the
applications.
[5] The jurisdictional challenge to the applications, which in all matters involved the
assertion that the dismissal was a case of genuine redundancy, and additionally in matter
[2013] FWC 8020
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 8020
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U2013/1784 (Mr Evans), included challenge that the application was not made within time,
was the subject of a Hearing conducted over three days, 18 and 19 September 2013 in
Tamworth and in Sydney on 22 October 2013.
[6] At the Hearing to deal with the jurisdictional objections, Mr J Goos, Employee
Relations Manager, appeared for Downer Mining and called Mr J Hill, Regional Manager, to
give evidence in support of the jurisdictional objections. Mr K Endacott from the CFMEU
appeared for the applicants and called each of the applicants and Mr J Drayton, CFMEU
District Vice President, to give evidence in opposition to the jurisdictional challenges made
by Downer Mining.
Background
[7] Downer Mining operates the Boggabri coal mine under contract from the mine owner,
Idemitsu Australia Resources Pty Ltd (IAR). IAR is an Australian subsidiary of the Japanese
Company, Idemitsu Kosan Co., Ltd.
[8] Downer Mining is an operational division of the Downer Group, Downer EDI Limited
(Downer EDI). Downer EDI provides engineering and infrastructure management services to
customers operating in market sectors including Minerals & Metals, Oil & Gas, Power, Road
& Rail Infrastructure, Telecommunications and Water. Downer EDI is a publicly listed
Australian Company which employs more than 20,000 people in Australia, New Zealand and
the Asia Pacific region.
[9] On 15 March 2013, Downer Mining received formal instruction from IAR to alter the
annual mine plan which governs the operation of the Boggabri coal mine. The instruction
from IAR essentially compelled Downer Mining to reduce the operational activity and output
from the Boggabri mine. The instruction was made in accordance with the contractual
obligations that enable Downer Mining to operate the mine on behalf of IAR and included a
direction to Downer Mining to alter the shift rostering arrangements that apply to employees
of Downer Mining working at the Boggabri mine. The instruction from IAR to reduce
operational activity and output appeared to have been caused by factors such as railway
capacity constraints and international currency exchange rates.
[10] Downer Mining assessed that the instruction to reduce mine output and alter shift
rostering arrangements would impact on manning levels such that a reduction of
approximately 30% of the workforce would result. These assessments translated into a
determination that 66 operator positions and 40 maintenance positions would be declared
redundant and require the termination of the employment of a total of 106 individuals.
[11] Downer Mining implemented a programme aimed at providing information to its
employees engaged at the Boggabri mine and their Union, the CFMEU, about the anticipated
redundancies arising from the instruction from IAR to reduce mine output and alter shift
rostering. This programme included meetings and discussions with CFMEU officials and
presentations to employees at Pre-Start Information Sessions (PSIs). As a result of these
consultations, certain changes to the proposed shift rostering were made and Downer Mining
agreed to a request from the CFMEU to invite expressions of interest for voluntary
redundancies without obligation that any such expression would be granted.
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[12] In due course, a selection criterion for determining those individuals who would be
made redundant was adopted and applied. Subsequently, the relevant employees were advised
that they had been selected for redundancy and some steps were taken to identify whether
there were reasonable redeployment opportunities which might be available.
[13] At the direction of IAR, all employees who had been selected for redundancy were
required to work out their notice periods. In addition, Downer Mining provided access to
various employee assistance programmes and counselling services.
[14] Each of the applicants received a letter dated either 18 or 19 April 2013 from Downer
Mining, which advised of that individual’s selection for redundancy which would be effective
on 17 May 2013 (the redundancy letters). The redundancy letters were broadly in the same
terms as evidenced by that sent to Mr Davis1. The termination of employment of each of the
applicants other than Mr Evans, occurred on 17 May 2013, in accordance with the terms
advised in the redundancy letters.
[15] On 12 July 2013, IAR issued another instruction to Downer Mining requiring an
increase in output from the Boggabri mine and altering shift rostering arrangements
accordingly. This instruction essentially reversed the previous instruction of 15 March which
had created the operational circumstances that gave rise to the redundancies of inter alia, the
applicants.
[16] At the time of Hearing, a number of those employees who had been made redundant as
a result of the 15 March instruction from IAR had been re-employed by Downer Mining as it
required additional labour to comply with the 12 July IAR instruction to increase output from
the mine. Although most of the applicants had applied for such re-employment, none had
been successful.
The Jurisdictional Objections
[17] Mr Goos who appeared for Downer Mining made oral submissions in support of
written material that he had filed. Mr Goos submitted that each of the applicants did not have
standing to make an unfair dismissal claim because each dismissal was a case of genuine
redundancy.
[18] Mr Goos referred to s.389 of the Act which provided a definition for the meaning of
genuine redundancy. Mr Goos submitted that there were clear operational requirements
placed upon the respondent by its client via the instruction given on 15 March 2013. Mr Goos
mentioned that the staff levels at the mine had been established upon an anticipated increase
in production rather than the decrease that was instructed by the client. Consequently
according to the submissions of Mr Goos, the respondent no longer required the job
performed by any of the applicants as they were part of the 106 employees made redundant as
a consequence of the instruction given by the respondent's client to reduce the output from the
mine.
[19] Mr Goos made further submissions in respect of the consultation obligations which he
said had been met by the respondent. In this regard Mr Goos referred to the relevant clauses
of the Downer EDI Mining Boggabri Enterprise Agreement 2010 (the Agreement). Mr Goos
submitted that the respondent had demonstrated that it had consulted with its employees and
[2013] FWC 8020
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their representatives who were affected by the major workplace change caused by the
instruction from the respondent's client.
[20] In respect to the question of consultation, Mr Goos submitted that the fact that
particular roster changes were altered and that qualified voluntary redundancy was provided
at the request of the CFMEU, demonstrated that the respondent had made practical changes as
a consequence of the consultation process that it had adopted. This, it was submitted, reflected
that the consultation obligations of the Agreement had been satisfied. Mr Goos acknowledged
that some aspects of the consultation process could have been better implemented but there
were no concerns raised by the CFMEU about the consultation process at the time.
[21] In further submissions, Mr Goos addressed the question of whether subsection 389(2)
of the Act which was concerned with redeployment had been satisfied. Mr Goos submitted
that any redeployment of any of the applicants was not reasonable in the circumstances.
Further, he said that the respondent had demonstrated that there were extremely limited
redeployment opportunities available either within the business of the respondent or an
associated entity of the respondent.
[22] Mr Goos also made submissions about the particular application for unfair dismissal
remedy made by Mr Evans (U2013/1784). Mr Goos submitted that in the case of Mr Evans,
an additional jurisdictional objection had been established.
[23] The employment of Mr Evans came to an end on 1 May 2013, when during the notice
period for anticipated termination on 17 May, Mr Evans provided Downer Mining with a
handwritten letter2 advising that he wished to leave because he had secured employment with
another company by the name of Underground Constructions. Consequently, Mr Goos
submitted that the application for unfair dismissal remedy made by Mr Evans involved a date
of termination of 1 May 2013 and therefore it had not been lodged within the time prescribed
by subsection 394(2) of the Act.
[24] In respect to Mr Evans’ application, Mr Goos submitted that it had been made out of
time and there had been no evidence to provide any mitigating circumstances to enable the out
of time application to be accepted by the Commission.
[25] Mr Goos made further submissions which stressed that any complaint about the
process for selection of individual redundancy was not a factor relevant to any assessment as
to whether the dismissal was a case of genuine redundancy. On this point Mr Goos referred to
item 1553 of the Explanatory Memorandum to the Fair Work Bill 2008 and to the Decision of
Simpson C in Klavs v Prestige Painters3 (Klavs).
[26] The submissions made by Mr Goos also addressed the issue of whether foreign
workers engaged via a process referred to as 457 Visa holders should have been selected for
redundancy before other workers. Mr Goos submitted that it would have been unlawful for the
respondent to include the 457 Visa as a factor for redundancy selection because to do so
would have been discriminatory and provide preference for workers who are Australian
citizens or residents. Mr Goos noted that two employees engaged on 457 Visas were selected
for redundancy and six others were not and this demonstrated that the selection process was
clear, transparent and fair.
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[27] In summary, Mr Goos submitted that each of the applicants’ dismissals was a case of
genuine redundancy because each of the relevant provisions of s.389 of the Act had been
satisfied. Specifically Mr Goos submitted that each of the jobs of the applicants no longer
existed because of operational changes, and the respondent had complied with its consultation
requirements, and any redeployment options were unreasonable in the circumstances.
Further, Mr Goos said that the application in the case of Mr Evans was also out of time.
Consequently, Mr Goos said that the applications did not have jurisdiction and therefore each
of the applications for relief from unfair dismissal should be dismissed.
The Case Against the Jurisdictional Objections
[28] Mr Endacott from the CFMEU appeared for the applicants and made extensive verbal
submissions in elaboration of a written outline of submissions filed on behalf of each of the
applicants. Mr Endacott submitted that there was an onus on the respondent to prove the
jurisdictional objection that it had raised.
[29] Mr Endacott submitted that the job that each of the applicants performed continued to
be required to be performed and therefore each was not a case of genuine redundancy. In
support of this submission, Mr Endacott undertook a detailed analysis of the mine production
figures during a period which traversed the time at which each of the applicants were made
redundant. Mr Endacott said that the evidence revealed that particularly in the case of
maintenance personnel, the mine was understaffed and the redundancies increased the use of
rostered overtime in order to maintain output which at no stage actually met the mine plan
production targets.
[30] Mr Endacott further submitted that the respondent had reduced personnel by 106
positions which represented approximately a 35% reduction of the total workforce. However
the reduction in planned mine output from 5.5 to 4.5 million tonnes per annum represented
only an 18% decrease. According to Mr Endacott, there was an important inconsistency
revealed when any need to reduce production by 18% led to a personnel reduction of 35%.
This inconsistency supported the proposition advanced by Mr Endacott that there was a
significant requirement for work previously performed by the redundant employees to
continue to be performed. Therefore according to Mr Endacott, the redundancies did not
satisfy that aspect of the meaning of genuine redundancy relating to changes to operational
requirements causing the jobs of the applicants to no longer be performed.
[31] Mr Endacott made further submissions which were critical of the evidence provided
by Downer Mining regarding the operational requirements which were said to support the
genuineness of the redundancies. Mr Endacott was critical of the evidence provided by Mr
Hill who was a human resources practitioner, and the absence of any evidence from an
appropriately qualified operational manager. Mr Endacott submitted that the onus was on
Downer Mining to adduce evidence from someone with operational knowledge to
demonstrate that the instruction that had been given by the client actually impacted upon the
production levels required by the mine plan. In the absence of this evidence, Mr Endacott
submitted that Downer Mining had not met the onus regarding the change in operational
requirements which led to the applicants’ jobs no longer being required to be performed.
[32] The genuineness of the redundancies of the applicants was also challenged by Mr
Endacott on the basis that employees at the mine were required to work public holidays and
significant amounts of regular rostered overtime. Mr Endacott submitted that particularly in
[2013] FWC 8020
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the case of maintenance employees, the evidence established that there were an insufficient
number of employees to meet the work requirements and this led to the working of additional
amounts of overtime.
[33] Mr Endacott further submitted that the operational reasons relied upon by Downer
Mining had not been properly established and the fallacy of the asserted basis for the
redundancies was reflected by evidence that within a month or two after the redundancies, the
employer commenced re-employing about 70 employees.
[34] In respect to the consultation requirements contained in the Agreement, Mr Endacott
submitted that the evidence had established that Downer Mining had implemented a process
which had fallen short of the relevant requirements. In particular, Mr Endacott submitted that
the words “discuss and detail” which were contained in the consultation clause of the
Agreement, were relevant to any analysis of whether Downer Mining had complied with the
consultation obligations. In this regard it was submitted that the evidence did not establish
that Downer Mining had discussed and detailed the changes which involved the redundancies
of the applicants.
[35] Mr Endacott made submissions which were highly critical of the consultation process
which had been implemented by Downer Mining. Mr Endacott mentioned that some of the
maintenance employees had not been included in meetings which were held to inform
employees about the anticipated redundancy. Further, Mr Endacott said that the PSI meetings
were held in overcrowded rooms which in some instances meant that some of those in
attendance would have had great difficulty seeing or hearing the presentations that were being
made. In addition he said that the process did not invite input from the employees and as such
did not represent meaningful consultation.
[36] According to the submissions of Mr Endacott, the consultation provided particularly to
maintenance employees was entirely unsatisfactory. Mr Endacott said that various
maintenance employees gave evidence that they had been advised by immediate supervisors
that because the maintenance area was short staffed they would be unaffected by the
redundancies that were being contemplated by Downer Mining. Mr Endacott referred to
various Authorities which he said established that consultation of the nature that had been
undertaken by Downer Mining had to be meaningful if it was to comply with the obligations
that arose from the consultation provisions of the Agreement.
[37] Mr Endacott also referred to a number of Decisions of this Commission and its
predecessor manifestations, which dealt with the issue of any redeployment which would have
been reasonable in the circumstances. Mr Endacott stressed that Downer Mining was part of a
very large group of Companies and the evidence which had been provided by the applicants
demonstrated that there had not been sufficient exploration of the redeployment opportunities
that may have existed for the applicants.
[38] Further, Mr Endacott referred to a letter that Downer Mining had provided to the
CFMEU on 15 March 2013, which sought to obtain approval from the Department of
Immigration and Citizenship to access a labour market agreement to fill vacant positions
which it said it was unable to fill from the local labour market. Mr Endacott made
submissions which focused upon the inconsistency which arose between the letter to the
Department of Immigration and Citizenship which asserted that Downer Mining had
[2013] FWC 8020
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difficulties in filling vacant positions, while in this case it asserted that there were no
redeployment opportunities for the applicants.
[39] Mr Endacott submitted that each of the applicants received a letter which contained
the words: “All reasonable redeployment opportunities with Downer have been considered
and discussed with you”. However the evidence established that despite the wording of the
letters such discussion did not actually occur. Mr Endacott said that despite some “self-
imposed limitations on some of the individuals” there had not been any proper exploration of
redeployment opportunities for the applicants.
[40] Mr Endacott made further submissions which concentrated upon redeployment
opportunities for maintenance employees in respect of positions held by employees engaged
via the 457 Visa arrangements. Mr Endacott submitted that the arrangements under which the
457 Visa employees were engaged, were of a temporary nature and that it would have been
reasonable for other employees, such as the applicants, to be given redeployment into the
positions occupied by the temporary 457 Visa employees.
[41] Further, Mr Endacott submitted that the proposition for redeployment of one or more
of the applicants into positions held by the 457 Visa holder employees was supported by the
statutory framework of the Act. In this regard, Mr Endacott referred to the objects of the Act
which included the promotion of national economic prosperity and social inclusion for all
Australians and he said that this object made a distinction between persons who were not
Australians such as those employees engaged under the 457 Visa arrangements and other
employees. Consequently, according to the submissions made by Mr Endacott, there were
redeployment opportunities in respect to the positions held by 457 Visa employees which
were not properly considered and which would have been suitable for some of the applicants.
[42] In summary, Mr Endacott submitted that Downer Mining had failed to establish the
basis for its jurisdictional objections to the applications. According to Mr Endacott, Downer
Mining had not provided evidence to establish that the meaning of genuine redundancy had
been satisfied in respect to each of the applicants. In particular it had not properly established
the operational requirements which meant that the applicants’ jobs were no longer required,
nor had it consulted in accordance with the Agreement obligations, nor had it established that
it would not have been reasonable for the applicants to have been redeployed. Consequently,
Mr Endacott urged the Commission to dismiss the jurisdictional objections raised by the
respondent employer.
Consideration
[43] This Decision has involved the determination of jurisdictional objections which were
taken by the employer, Downer Mining, who is the respondent to inter alia, seven applications
for unfair dismissal remedy made pursuant to s.394 of the Act.
[44] Relevantly, s.396 of the Act requires that the Commission must decide a number of
specified matters before considering the merits of any application made under s.394. In this
instance, the jurisdictional objections arise in all applications from the provisions of
subsection 396 (d) of the Act, and in one case, (U2013/1784) an additional objection has been
advanced under subsection 396 (a). The particular provisions of s.396 of the Act are:
[2013] FWC 8020
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“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
...
(d) whether the dismissal was a case of genuine redundancy.”
[45] Consideration has been approached by initial examination of the jurisdictional
objections raised in respect of each application regarding subsection 396 (d) of the Act (the
genuine redundancy question). As a matter of logic and efficiency, the additional
jurisdictional objection made in respect of one application under subsection 396 (a), (the out
of time question), would only require consideration in the event that the jurisdictional
objection common to all applications, the genuine redundancy question, was not upheld in
that application which also involved the out of time question.
The Genuine Redundancy Question
[46] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of
genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) ... and
(d) the dismissal was not a case of genuine redundancy.”
[47] Section 389 of the Act provides for a meaning of genuine redundancy:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed
by anyone because of changes in the operational requirements of the
employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.
[2013] FWC 8020
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(2) 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 within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[48] An examination of the provisions of s.389 of the Act identifies three specific elements
which, if satisfied in combination, determine whether or not a dismissal was a case of genuine
redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be
established, in order to allow for a finding that a dismissal was a case of genuine redundancy
and subsection 389 (2) contains one negatory element which, if established, renders the
dismissal not to be a case of genuine redundancy.
[49] For convenience I have abbreviated the three elements identified within s.389. The
first affirmative element which is extracted from subsection 389 (1) (a) has been described as
“job lost due to operational requirements”; the second affirmative element extracted from
subsection 389 (1) (b) has been called “consultation obligations”; and the third negatory
element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.
[50] Consequently, my approach to consideration of the question of whether a dismissal
was a case of genuine redundancy has involved examination of the three separate elements
contained in s.389 of the Act, such that, each of these three separate elements must, in
combination, be satisfied in order to make any finding of genuine redundancy. This means
that the two affirmative elements contained in subsection (1) must be established and the
negatory element found in subsection (2) must not be present in order to make a finding that a
particular dismissal was a case of genuine redundancy.
Job Lost Due To Operational Requirements
[51] In this instance, the evidence has established that the applicants were seven individuals
who were part of a total of 106 employees dismissed on the basis of alleged redundancy. The
decision by Downer Mining to dismiss 106 employees was directly connected with the
instruction from its client, IAR, as conveyed in the letter of 15 March 20134.
[52] There was no dispute that 106 employees were dismissed and that at least initially, the
jobs that were performed by those employees were lost, that is, the actual number of
employees engaged at the mine decreased by 106. The CFMEU adduced considerable
evidence which sought to demonstrate that the amount of work which was required to be
performed at the mine did not reduce commensurate with the loss of 106 jobs. Essentially this
evidence successfully challenged some aspects of the decision-making processes adopted by
Downer Mining and which led to the determination that 106 employees would be made
redundant as a consequence of the instruction from IAR of 15 March 2013.
[53] The evidence established that particularly in the case of maintenance employees, some
of the work that had been performed by those who had been made redundant was redistributed
amongst the remaining employees. However the redistribution of work amongst retained
employees via increased overtime or other measures does not alter the fact that a job as
opposed to the work of an individual was lost.
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[54] Although the decision made by Downer Mining to reduce the jobs at the mine by 106
may have been inappropriate and even excessive, the fundamental aspect that the jobs of 106
employees, including the applicants, were lost because of changes in the operational
requirements of the employer's enterprise was inescapable. In other words, even if the
decision to make the applicants redundant was established to have been a bad one, even
perhaps a foolish decision, such imprudence does not disturb the fact that the job was no
longer required to be performed by anyone because of changes in the operational
requirements of the employer's enterprise.
[55] Subsection 389 (1) (b) of the Act does not establish any requirement that when an
employer decides that it no longer requires a person's job to be performed by anyone, it must
make that decision based on sound and well defensible management practices. Therefore,
notwithstanding the validity or otherwise of the challenges that the CFMEU made to the
decision to reduce jobs by a total of 106, there can be no finding made, other than the jobs of
the applicants were no longer required to be performed by anyone because of the changes in
the operational requirements which arose from the instruction given by IAR on 15 March
2013.
[56] Consequently, in respect of all of the applicants, the first element of s.389 of the Act
has been established, that is, the employer no longer required any of the applicants’ jobs to be
performed by anyone because of changes in the operational requirements of the employer's
enterprise. The basis upon which this finding is made has involved circumstances which were
common to each of the applicants.
Consultation Obligations
[57] The second element contained in s.389 of the Act requires a positive finding that the
employer had complied with any Award or Agreement obligations to consult about the
redundancy. The relevant consultation obligations are contained in clauses 2.4.1 and 6.4 of the
Downer EDI Mining Boggabri Enterprise Agreement 2010 (the Agreement). These clause are
in the following terms:
“2.4 Redundancy
2.4.1 Consultation
The Company will consult with Employees and their representatives regarding
any proposed redundancies before a final decision is made, however the
Company reserves the right to implement redundancies based on the needs of
the Operation. In this event the Company will discuss and detail the proposed
processes that will be introduced to determine those redundancies with the
affected parties.
...
6.4 Consultation
As soon as practicable after making a definite decision to introduce a major
change to production, program, organisation, structure or technology that is
likely to have a significant effect on employees, the Company must consult with
affected employees about those major workplace changes.
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The affected employees may be represented for the purposes of that
consultation.
For the purposes of this clause, the Company is not required to disclose
confidential or commercially sensitive information relevant employees.”
[58] The evidence provided by Mr Hill on behalf of Downer Mining, included details of the
consultation process that was implemented shortly after the instruction was given by IAR on
15 March. Downer Mining representatives met with various representatives of the CFMEU on
or about 25 March 2013, and discussions commenced about the anticipated redundancies that
would occur as a consequence of the instruction given by IAR.
[59] Shortly after the initial meeting between representatives of Downer Mining and the
CFMEU, a series of on-site information meetings (PSIs) and other communications including
a PowerPoint presentation, were conducted as part of the consultation process regarding the
anticipated redundancies. During the period of the consultation process, a number of matters
relevant to the redundancies were altered or implemented in response to suggestions made by
the CFMEU. As one example, in response to a request from the CFMEU, Downer Mining
agreed to implement a process for employees to request voluntary redundancy.
[60] The evidence provided by some of the applicants revealed some deficiencies in
particular aspects of the consultation process. In particular, the material provided in the
PowerPoint presentations omitted reference to anticipated redundancy for maintenance
employees and specifically only mentioned anticipated redundancies for operators. There was
further evidence that maintenance management staff erroneously suggested to maintenance
employees that the anticipated redundancies would be confined to operator positions. There
was also evidence that at least one of the applicants who was a maintenance employee, had
not been provided with any advice via the PSI meetings.
[61] In any consultation process involving several hundred employees working on various
shift patterns, there is likely to be some instances where particular employees may not have
received the desired or intended level of communication and consultation. The practical
difficulties associated with a process of this nature must be balanced against evidence of
particular individuals who, for a variety of reasons, did not receive the level of
communication and consultation that was clearly intended.
[62] In this instance, the most regrettable deficiency that was identified in the consultation
process related specifically to the inadequate and perhaps even misleading advice provided to
maintenance employees. An examination of the totality of the evidence regarding important
omissions in respect to anticipated redundancies applying to maintenance employees, has
been a most troubling aspect for consideration.
[63] It has been difficult to balance the deficiencies evident in the consultation process
particularly as concerned maintenance employees, against the active encouragement by
Downer Mining for extensive involvement of the CFMEU including the adoption of measures
requested by the Union. The evidence established that in some instances, the proposed
redundancies had been discussed and detailed as clause 2.4.1 of the Agreement would
envisage, and in other cases particular employees had very little, if any, consultation.
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[64] Ultimately, although there were deficiencies in some aspects of the consultation
process implemented by Downer Mining, the terms of subsection 389 (1) (b) are directed to a
determination as to whether there was compliance with Award or Agreement obligations, as
opposed to the particular standard of success achieved by the actions involving compliance.
On balance, I have formed the view that Downer Mining acted in good faith and with every
intention to comply with the consultation obligations arising from the provisions of the
Agreement. Consequently, I find that the consultation obligations have been met and this
element of s.389 has been satisfied in respect to the circumstances of all employees including
the applicants.
Reasonable Redeployment
[65] The third element of s.389 of the Act is the negatory provision contained in subsection
389 (2). This element renders what may have been a genuine redundancy which possessed the
elements of subsection 389 (1), to be not a case of genuine redundancy if redeployment was
reasonable in all the circumstances. Redeployment is contemplated to extend to any
associated entities of the employer.
[66] The first and second affirmative elements extracted from subsection 389 (1) broadly
involve an examination of the conduct of the employer, essentially what gave rise to the
dismissal and whether there was compliance with any relevant consultation obligations. The
third element concerning reasonable redeployment involves examination of both the
employer’s actions and those of individual employees because the reasonableness or
otherwise of any redeployment is a matter that would need to be assessed on a case by case
basis.
[67] Consequently, the consideration of the reasonable redeployment element of s.389 of
the Act has involved an examination of the actions which Downer Mining undertook in the
pursuit of redeployment, both in general application and for individual employees, and it has
also involved careful scrutiny of the conduct and approach to redeployment demonstrated by
each of the applicants.
[68] The significance attached to redeployment as an alternative to any dismissal based
upon alleged redundancy is plain from the terms of subsection 389 (2) of the Act. Further, it
would seem that in broad terms, redeployment would usually involve common benefit for
both the employer and employee. Therefore, despite any legislative requirements, it would
seem to be just good business management to properly exhaust all reasonable redeployment
options before implementing any dismissal for redundancy. Of course it is conceivable that
the pursuit of redeployment may be influenced by other factors and redundancy may represent
a convenient means to dismiss a particular “undesirable” person as part of a group of
redundancies. An examination of the pursuit of redeployment on a case by case basis may
expose conduct on the part of either the employer or an employee which may not be genuine
and thus provide basis to determine whether, in all the circumstances, it would have been
reasonable to redeploy.
[69] Each of the applicants received a letter of dismissal which included the words: “All
reasonable redeployment opportunities with Downer EDI have been considered and
discussed with you.” The inclusion of these words in the letters of dismissal was little more
than a hollow platitude offered to provide the appearance that genuine, earnest exploration of
[2013] FWC 8020
13
redeployment had been undertaken. The evidence has revealed that in many instances, there
was simply no discussion at all with various individuals about redeployment.
[70] There was also a lack of clear or comprehensive communication with employees about
potential redeployment positions which existed throughout the Downer EDI group of
Companies. Many of the applicants were provided with a list of Group Wide Current
Vacancies for the first time after they had been dismissed. The provision of the Group Wide
Current Vacancy list whilst still in employment would have been fundamental to the proper
exploration of reasonable redeployment.
[71] Further, in some instances where vacancy lists were provided, the prospect for any
redeployment into these positions was conveyed on the basis that “... all positions listed
outside of Downer Mining (ie. Downer Australia, Downer Rail etc.) are to be treated as a
whole new position and applications are only accepted online. They are not considered
internal transfers.”5 Further, at least one of the applicants gave unchallenged evidence that the
Mine Manager, Mr De Nysschen, stated that redeployment would only be considered within
Downer Mining and not across other operational divisions such as Downer Rail.6
[72] The approach to redeployment adopted by Downer Mining was sadly inadequate and
did not satisfy, in general terms, the requirements which have been established to arise from
subsection 389 (2) of the Act. In this regard, it is relevant to repeat the following extracts from
the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors:
“[34] It may be appropriate to make some concluding remarks about the operation of
s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a
redundant employee be placed in another job in the employer’s enterprise as an
alternative to termination of employment. Of course the job must be suitable, in the
sense that the employee should have the skills and competence required to perform it
to the required standard either immediately or with a reasonable period of retraining.
Other considerations may be relevant such as the location of the job and the
remuneration attaching to it. Where an employer decides that, rather than fill a
vacancy by redeploying an employee into a suitable job in its own enterprise, it will
advertise the vacancy and require the employee to compete with other applicants, it
might subsequently be found that the resulting dismissal is not a case of genuine
redundancy. This is because it would have been reasonable to redeploy the employee
into the vacancy. In such a case the exception in s.385(d) would not apply and the
dismissed employee would have the opportunity to have their application for a remedy
heard. The outcome of that application would depend upon a number of other
considerations.
[35] Where an employer is part of a group of associated entities which are all subject
to overall managerial control by one member of the group, similar considerations are
relevant. This seems to us to be a necessary implication arising from the terms of
s.389(2)(b). While each case will depend on what would have been reasonable in the
circumstances, subjecting a redundant employee to a competitive process for an
advertised vacancy in an associated entity may lead to the conclusion that the
employee was not genuinely redundant.”7 [emphasis added]
[2013] FWC 8020
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[73] The conduct of Downer Mining in respect to the pursuit of reasonable redeployment
did not, by way of general application, satisfy the requirements that are necessary to avoid the
negatory impact of subsection 389 (2) of the Act. However, subsection 389(2) includes
reference to all the circumstances. Consideration of whether redeployment was reasonable can
not be confined to the actions or inactions of the employer. For example, an employer could
fail to even contemplate any redeployment, but if it was established that there were no
positions to which any employee could have been redeployed, how could it have been
reasonable to redeploy?
[74] Therefore there is a further requirement to examine the circumstances of each of the
applicants in order to determine whether, despite the inadequate approach to redeployment
adopted by Downer Mining, some other factor may have meant that redeployment of a
particular individual would not have been reasonable. The particular circumstance of each of
the applicants has required examination on a case by case basis and if evidence has emerged
that some factor operated to make redeployment unreasonable then subsection 389 (2) of the
Act would be satisfied, its negatory impact would be avoided and a case of genuine
redundancy would be established.
[75] The prospects for redeployment across the Downer EDI group of Companies for
someone with established skills and competencies in either operational or maintenance fields
would, in the absence of evidence of some significant, broad economic contraction, appear
prima facie, to be reasonable. This proposition was supported by evidence that Downer EDI
had sought to access what is known as the 457 Visa scheme as a means to supplement its
unsatisfied local labour demand in both specialist and non-specialised operational and
maintenance positions.
[76] All of the applicants possessed a broad range of skills and competencies in operational
or maintenance functions and in some cases, both operational and maintenance qualifications
and competencies had been obtained. Obviously there were differing levels of proficiency that
could be assessed between the various applicants. However, in general terms, there was no
indication that any one of the applicants did not possess suitable skills and competencies to
satisfactorily perform the work comprehended by one or more of the numerous positions
which were contained in the list of Group Wide Current Vacancies.
[77] The securing of reasonable redeployment involves the genuine and earnest approach
of both employer and employee. As stated earlier, the approach to redeployment adopted by
Downer Mining was inadequate. I have examined the evidence given by each of the
applicants in order to ascertain whether each individual’s approach to redeployment was
genuine and earnest, such that there was a denial of reasonable redeployment. Particular
importance has been attached to any evidence that an individual did not take active steps in
the pursuit of redeployment or that an individual imposed particular conditions or restrictions
upon the terms of any redeployed position.
[78] Each of the applicants gave open and truthful evidence as a witness. It was clear that
each of the applicants was understandably aggrieved by what they believed to be their unfair
dismissal. I have carefully examined the evidence given by each of the applicants. Ultimately
I have formed a view on a case by case assessment as to whether a particular individual
genuinely pursued redeployment or alternatively, if a particular person acted languidly or
imposed conditions or restrictions which meant that redeployment of that individual would
not have been reasonable.
[2013] FWC 8020
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[79] In the order that each of the applicants gave evidence as a witness, I provide a brief
summary of the basis upon which I have formed a view about the approach to redeployment
taken by each applicant.
[80] Mr Davis was clearly motivated in his pursuit of redeployment, to the point that he
was “...sort of desperate ... [for] anything else available like anywhere...”8. Mr Fisher was
similarly “...getting pretty desperate... [and] would have went to any of them.”9 Conversely
Mr Bartlett was “...only interested in something in New South Wales,”10 and “...wasn’t
prepared to move... [as he had] ...lived in Gunnedah 46 years.”11 Ms Giffin declined an offer
to speak to HR recruitment people about redeployment.12 Mr Shaw was prepared to travel for
work in respect to any redeployment.13 However, Mr Evans had a clear preference to stay
local14 as did Mr Kirton.15
[81] The corollary of the case by case assessment of the applicants’ particular approach to
the pursuit of redeployment has resulted in findings that it would have been reasonable for
Downer Mining to have redeployed Mr Fisher (U2013/1781), Mr Davis (U2013/1787) and
Mr Shaw (U2013/1788). However I further find that in all the circumstances, it would not
have been reasonable to redeploy Mr Bartlett (U2013/1782), or Mr Evans (U2013/1784), or
Mr Kirton (U2013/1786) or Ms Giffin (U2013/1793).
[82] Therefore the negatory element contained in subsection 389(2) of the Act has operated
in respect to the applications made by Fisher, Davis and Shaw and the dismissals of these
individuals do not satisfy the meaning of genuine redundancy as contained in s.389 of the
Act. There is no satisfaction of the negatory element of subsection 389(2) in respect to the
applications made by Bartlett, Evans, Kirton and Giffin.
The 457 Visa Issue
[83] The CFMEU also argued that as a “subset” of the notion of reasonable redeployment,
those applicants who had similar maintenance qualifications, skills and competencies to those
of the 457 Visa holder employees who had not been made redundant, should have been
redeployed into the positions occupied by the 457 Visa holders. This proposition is
misconceived because it confuses redeployment with replacement. Redeployment requires
there to be a vacant position to move to, rather than to displace the existing occupant of a
position.
[84] Therefore the 457 Visa argument advanced by the CFMEU essentially introduced
challenge to the selection process and sought to require that 457 Visa holder employees be
selected to be redundant because they were not Australian nationals. As was identified in the
Decision of Simpson C in Klavs, any argument about the selection of redundant individuals is
not a matter for inclusion in the determination of genuine redundancy.
The Out of Time Application
[85] In view of the findings made about the absence of any operation of subsection 389(2)
of the Act in the application made by Mr Evans, it is strictly unnecessary to determine the out
of time aspect of that application. However, for completeness and if I am wrong in respect to
the question of genuine redundancy, I find that there was no basis upon which to establish that
[2013] FWC 8020
16
exceptional circumstances existed so as to permit an extension of time to allow the application
made by Mr Evans (U2013/1784) to proceed.
Conclusion
[86] This Decision has been made in respect to jurisdictional objections raised by the
employer respondent to seven applications for unfair dismissal remedy. The jurisdictional
objections have been primarily advanced on the basis that the dismissals were each a case of
genuine redundancy and therefore, by operation of subsection 385(d) of the Act, without
standing.
[87] The determination of the jurisdictional objections has focused upon the meaning of
genuine redundancy as contained in s.389 of the Act. Section 389 of the Act contains two
affirmative elements and one negatory element which must be satisfied so as to establish
whether a dismissal was or was not a case of genuine redundancy.
[88] Upon analysis, I have determined that the first two affirmative elements were satisfied
in respect to all applications. In respect to the negatory element contained in subsection 389
(2) which deals with reasonable redeployment, I have determined that in the circumstances of
three of the applications, this negatory element has been satisfied and therefore these were not
cases of genuine redundancy. The other four applications do not satisfy the negatory element
in subsection 389 (2) and each of those cases involves genuine redundancy.
[89] In view of the findings made as to genuine redundancy, the jurisdictional objections
of Downer Mining are upheld in respect to the applications made in matters numbered
U2013/1782, U2013/1784, U2013/1786, and U2013/1793. These applications are dismissed
and Orders [PR544849, PR544850, PR544852, PR544853] will be issued accordingly.
[90] The dismissal of the applicants in matters numbered U2013/1781, U2013/1787 and
U2013/1788 were not cases of genuine redundancy and therefore the jurisdictional objections
of Downer Mining made in respect to these matters are rejected. These applications shall be
listed for further proceedings upon the written request of the applicants.
COMMISSIONER
Appearances:
Mr K Endacott, from the CFMEU, appeared on behalf of the applicants;
Mr J Goos, appeared on behalf of Downer Mining.
JAL OF F THE ORK COMMISSION Hra
[2013] FWC 8020
17
Hearing details:
2013.
Tamworth:
September, 18 & 19.
Sydney:
October, 22.
Printed by authority of the Commonwealth Government Printer
Price code C, PR543206
1 Exhibit 3 @ Annexure “JWD-3”.
2 Exhibit 9.
3 Ms Felicity Klavs v Prestige Painters [2013] FWC 2485.
4 Exhibit 1 Appendix 1.
5 Exhibit 3 @ Annexure “JWD-4”.
6 Exhibit 4 @ paragraph 15.
7 Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB
7578.
8 Transcript of proceedings (19 September 2013) @ PN1274.
9 Transcript of proceedings (19 September 2013) @ PN1353 and see also PN1366.
10 Transcript of proceedings (19 September 2013) @ PN1406.
11 Transcript of proceedings (19 September 2013) @ PN1451.
12 Transcript of proceedings (19 September 2013) @ PN1518 and 1520.
13 Transcript of proceedings (19 September 2013) @ PN1572.
14 Transcript of proceedings (19 September 2013) @ PN1726.
15 Transcript of proceedings (22 October 2013) @ PN2004.
