AN appeal against 12 rejected unfair dismissal applications has been dismissed by the Fair Work Commission which ruled that substantial efforts by the employer to redeploy the workers proved each redundancy to be genuine.

In the first instance, a group of 12 workers formerly employed at Glencore Xstrata’s Ravensworth mine in the Hunter Valley were dismissed as part of a restructure involving some redundancies.

The employees, who filled production and engineering roles at the site, argued the redundancies were not genuine as efforts to redeploy the workers to other positions within the company were minimal.

Deputy President Lawrence, however, rejected the workers’ case, stating that the applicants ‘were unable to provide enough evidence that work could be made available through the displacement of contractors or put forward a practical proposal as to how this could be done’.

“This is particularly because the Commission has said, and I accept, that positions cannot be created where there are none; displacing existing occupants of positions is not appropriate; and a requirement that there be a complete change in the employer’s employment strategy is not appropriate,” he added.

On seeking an appeal, the workers were represented by the Construction, Forestry, Mining and Energy Union (CFMEU), which argued DP Lawrence had erred in his decision by requiring the workers to prove they could be redeployed, rather than requiring the employer to prove the workers could not redeployed.

Vice President Hatcher, Deputy President Sams and Commissioner Deegan rejected the argument, indicating the union had misinterpreted DP Lawrence’s decision.

“The decision cannot be read as relieving the respondent of any evidentiary onus which it bore, since as explained it clearly discharged any such onus,” the Full Bench said.

“Furthermore, our review of the evidence leads us to conclude that the respondent did in fact establish that redeployment of the appellants to work performed on overtime or by contractors would not have been operationally practicable and therefore would not have been reasonable.”

Concluding re-hearing the matter would result in the same outcome for the workers, the Full Bench refused permission to appeal.

To read the decision in full, click here.

Implications for Employers

This particular case highlights potential issues in complying with requirements around ‘genuine redundancy’. According to s.389 of the Fair Work Act 2009:

‘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:

1. 1. the employer’s enterprise; or
   2. the enterprise of an associated entity of the employer.

When navigating operation restructures and associated redundancies, it is both mandatory and beneficial for AREEA members to attempt redeployment of workers selected for redundancy.

In Glencore Xstrata’s case, this was demonstrated by communicating position vacancies and encouraging those affected by the mine restructure to express their interest.

Understandably, it is not always possible to redeploy workers made redundant, meaning management of the redundancy process is also critical. AREEA members are encouraged to train their leaders in termination procedures, requirements and sensitivities to minimise the risk of conflict.

Such training opportunities are available through the resource industry Registered Training Organisation, AREEA Training & Development. For more information and to speak to a training consultant, contact 1800 891 662.

Before embarking on operational restructures, AREEA members are also encouraged to contact our workplace relations experts, who can provide advice and information about redundancy and associated legal requirements. Please contact your local AREEA office for more information.