[2021] FWC 4668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Hodge
v
Wilpena Vineyards Pty Ltd
(U2021/3378)

COMMISSIONER HAMPTON

ADELAIDE, 26 AUGUST 2021

Application for an unfair dismissal remedy – preliminary jurisdictional issue – whether genuine redundancy – whether job no longer required – whether consultation requirements of modern award met – whether reasonable redeployment options overlooked – duties continued but job no longer required due to operational changes – consultation after a definite decision had been made was undertaken and requirements met – genuine redundancy found – application dismissed.

1. What this decision is about

[1] Mr Jamie Hodge has made an application seeking a remedy for an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). The respondent in this matter is his former employer, Wilpena Vineyards Pty Ltd (Wilpena or the Respondent).

[2] Wilpena conducts a vineyard operation located in Blewitt Springs near McLaren Vale in South Australia. It has historically conducted its operations by utilising a small number of employed staff (including the owners), supplemented by contractors.

[3] At the time of his dismissal on 19 April 2021, Mr Hodge was employed as a full-time Grade 5 Vineyard Worker under the Wine Industry Award 2020 (the Award) when he was dismissed on the stated basis of a redundancy. Wilpena contends that this arose from changes in the operational requirements of the business that resulted in the position of Grade 5 Vineyard Worker no longer being required. This is disputed by Mr Hodge.

[4] Mr Hodge was provided with 3 weeks’ pay in lieu of notice and all accumulated annual leave entitlements. Wilpena employed fewer than 15 employees at the time of the applicant’s dismissal and as a Small Business Employer 1 was not required by the Award or the National Employment Standards2 to make redundancy payments.

[5] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Wilpena contends that Mr Hodges’s dismissal was a case of genuine redundancy and this is in dispute. Section 396 of the FW Act provides that certain matters must be decided before considering the merits of an application and the issue of genuine redundancy is one such case. 3 By agreement between the parties, the Commission has conducted a hearing to deal with the entirety of Mr Hodge’s unfair dismissal application including receiving evidence and submissions regarding the genuine redundancy issue, the merit of the application, and remedy.

[7] Wilpena was represented with permission 4 by Mr Earls and Mr Hodge represented himself.

[8] Given that Mr Hodge was not professionally represented, I undertook a series of measures to facilitate a fair hearing consistent with s.577 of the FW Act and the Fair Hearings Code of Practice. These included detailed explanations of the issues and the proposed course of the hearing; latitude with the nature, and assistance with the course, of the evidence; and appropriate steps to permit him to present his case at its highest point. However, both parties retained responsibility to provide and challenge relevant evidence.

[9] Ultimately, I have concluded that the dismissal was a case of genuine redundancy within the meaning of the FW Act. As a result, there is no basis to consider the remaining aspects of the application.

[10] This decision outlines the basis of that finding and confirms the consequences.

2. What is a genuine redundancy under the FW Act?

[11] The meaning of genuine redundancy is set out in s.389 of the FW Act in the following terms:

“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.

(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.”

[12] I will, only for convenience, describe the three elements of s.389 as being:

• Section 389(1)(a) – job no longer required due to changes in operational requirements;

• Section 389(1)(b) – where relevant, compliance with consultation requirements of a modern award or enterprise agreement; and

• Section 389(2) – reasonable redeployment.

[13] It is common ground that the Award applied to Mr Hodge’s employment at the time of his termination. Further, the Award contains a potentially relevant consultation provision. Wilpena did not concede that this provision applied to the decision to make the changes that led to Mr Hodge’s dismissal. I will return to this aspect later in the decision but I have dealt with this matter on the basis that the Award provision applied to the circumstances in which the dismissal took place.

[14] Given the existence of a relevant consultation obligation here, to be a genuine redundancy all three elements of s.389 of the FW Act must be met and the Respondent must demonstrate to the Commission that each has been satisfied.

3. The cases presented by the parties

3.1 Wilpena Vineyards

[15] Wilpena contends that having conducted a review of the operations and taking into account the personal struggles of its Manager and declining market conditions, a decision to outsource the majority of vineyard tasks to contractors was made. It posits that this included the supervision of the labour requirements and the functions previously undertaken by Mr Hodge.

[16] Further, Wilpena contends that:

• There was a proper operational basis for the decision, which was taken after significant deliberation and with independent advice.

• Most vineyard tasks have now been outsourced to contractors who themselves control their labour requirements with the effect being that the Applicant’s position was no longer required.

[17] Wilpena further contends that whilst some of the duties previously undertaken by Mr Hodge persist in some form, the job in itself does not, and the duties have been redistributed to remaining members of staff and external contractors. As a result, Mr Hodge’s job was no longer required due to changes in its operational requirements and that this was a redundancy.

[18] Further, whilst not conceding that the consultation provision of the Award applied, it had in any event provided the notice of the change and consulted with Mr Hodge as required by the relevant consultation requirements. Wilpena contends that this included:

• The written notice of the change and the commencement of discussions took place as soon as practicable after the definite decision had been made which coincided with the practical completion of the harvest (vintage);

• The notice to Mr Hodge contained the necessary details to comply with the notification requirements of the Award;

• The Respondent sought suggestions from Mr Hodge about the issues and gave him a reasonable opportunity to put forward matters and considered the issues he raised; and

• The fact that Mr Hodge disputed the decision itself does not mean that it has not consulted.

[19] Wilpena contends that it has not failed to reasonably redeploy the Applicant into a contractor or other position within its enterprise. There has been no job identified that could be subject to redeployment and it was not reasonable to redeploy Mr Hodge given the very small size of the business, the seasonal nature of much of the outsourced work, the fact that it does not control the work of the contractors, and it could not reasonably insource the work given the nature of the restructuring decision itself.

[20] All of this, it contends, meant that Mr Hodge’s dismissal was a genuine redundancy within the meaning of the FW Act and the unfair dismissal application itself should be dismissed.

[21] Wilpena relies upon the witness statements, and where given, the oral evidence of the following:

• Mr David Stanton, Rural Financial Counsellor employed by Rural Business Support; 5

• Mr Jonathon Trott, Manager of Wilpena Vineyards; 6

• Ms Suzanne Trott, Director of Wilpena Vineyards. 7

[22] Mr Trott and Ms Trott were cross-examined during the hearing. Mr Stanton was not required for cross examination 8 and I observe that his evidence went largely to the background context for, and timing of, the decisions made by Wilpena.

3.2 Mr Hodge

[23] Mr Hodge contends that Wilpena did not comply with any of the three requirements of s.389 of the FW Act and that his dismissal was not a case of genuine redundancy.

[24] In relation to s.389(1)(a) – job no longer required due to changes in operational requirements, Mr Hodge’s fundamental submission is that he, in fact, was not dismissed as a result of organisational change at all. That is, there was no organisational change and he was dismissed because he failed to turn up to work on 6 April 2021.

[25] Mr Hodge also contends that:

• His duties as a Grade 5 Vineyard were still required to be performed, including:

• Training and supervising contractors engaged by the Respondent;

• Vine training and pruning;

• Irrigation works; and

• Wire lifting and dropping.

[26] Mr Hodge posits that these duties are now being undertaken by Mr Trott, another employee retained in the business, and by contractors. Further, a vineyard of the kind operated by the Respondent required a senior vineyard worker to continue in that role. As he was the only hands-on worker employed by Wilpena, his job was required.

[27] Mr Hodge also submits that Wilpena has not provided evidence to support its various contentions and has not demonstrated that there has been a downturn in business or that the engagement of contractors would be more financially viable.

[28] Mr Hodge further contends that Wilpena failed to meet its consultation obligations on various grounds including:

• There was no consultation whatsoever;

• Being advised on 6 April 2021 of a review of the Respondent’s business including the potential for his position to be made redundant, whilst he was on directed annual leave, when this was being considered for many months;

• Being asked on the same day, to attend the vineyard to meet with Ms Trott via SMS message whilst being on directed annual leave;

• Receiving notice of redundancy via telephone;

• There was no opportunity to engage in proper consultation; and

• Allowing a period of or about only 13 days for any consultation to take place with him, during which time he was away on annual leave.

[29] In relation to s.389(2) – reasonable redeployment, Mr Hodge contends that reasonable redeployment options at the vineyard were not fully explored. In particular, he contends that amongst other options he was not afforded the opportunity to be redeployed as an independent contractor instead of using the alternative contractors that have since been engaged. Further, the position occupied by the other employee retained should have been considered given that Mr Hodge was the longer serving employee with hands-on skills.

[30] Mr Hodge provided a written witness statement 9 and gave oral evidence and was cross-examined during the hearing.

4. Observations on the evidence

[31] There are some factual disputes in this matter, but largely these are matters of perspective, degree and emphasis. Where there is a direct factual dispute on an issue, I have resolved such having regard to the nature of that evidence, the degree to which the witness was able to give direct first-hand evidence about the issue, and my view about the credibility of the evidence generally.

[32] In general terms I found that each of the witnesses gave their evidence openly and to the best of their recollection. In the case of Mr Hodge, and to a lesser degree, Mr Trott, that recollection was not always clear or complete. They also tended to subjectively summarise the proponent’s view about the thrust of some of the exchanges with each other, rather than the detail of the discussion. As a result, I have treated those elements with caution.

[33] I also found that Mr Hodge’s strong and negative personal views about Mr Trott, and the Wilpena business more generally, have significantly influenced his evidence, particularly in terms of his perception as to how and why the events were unfolding. As a result, I have placed most weight upon the more objective evidence.

[34] In submissions, Mr Hodge also made reference to some alleged discussions between Mr Trott and other people, associated with Mr Hodge, who were not called to give evidence. The nature of those discussions and the general context of relationships with former contractors was very much in dispute. Given that Mr Hodge was not represented, I do not intend to draw any negative inference from the failure to lead that evidence; however, I place no weight upon what was second-hand and untestable evidence.

[35] I consider the evidence of Ms Trott to be honest and convincing.

[36] Where witnesses have purported to give evidence about the implications of the facts for the respective cases, I have treated those elements as submissions, noting that it is the Commission’s role to determine those matters.

5. The general factual context

[37] Wilpena Vineyards is a privately owned business. Ms Trott is the sole director and shareholder.

[38] Both Ms Trott and Mr Trott have some other business interests. These involve vineyards but neither directly employs any staff, although Mr Trott’s other business utilises labour provided, in effect, by Wilpena from time to time. Wilpena contends that these other businesses are not “associated entities” for the purposes of s.389 of the Act. In the absence of direct evidence about this element, I have allowed for the fact that this may not be so. Ultimately, as they do not employ anyone, nothing of consequence flows from this aspect.

[39] Mr Hodge was initially engaged as an independent contractor by the Respondent performing ad hoc manual work from about November 2018. This was organised through a friend of his who had some contractual relationship with Wilpena. In or about July 2019, Wilpena engaged Mr Hodge in a full-time salaried position as a Vineyard Manager. As Vineyard Manager, Mr Hodge was responsible, amongst other matters, for finding, engaging and supervising the work of contractors who undertook both seasonal and other work on the vineyard from time to time. This position involved an annual salary of $65,000 plus superannuation at the rate of 9.5%.

[40] At some point between July 2019 and September 2020, Mr Hodge had a disagreement with Mr Trottabout thequality and cost ofvine pruning undertaken by contractors. This led to Mr Hodge declining to continue to source or manage contactors for the vineyard. After some discussions with the Applicant about his position, on 25 September 2020, Wilpena informed Mr Hodge that he would no longer be engaged as the Vineyard Manager but would be employed as a Grade 5 vineyard worker under the Award. The new contract commenced on 1 October 2020 and provided for full-time employment in that role.

[41] I observe that the dispute, Mr Hodge’s response, and the subsequent demotion has had a significant impact upon the relationship between the Applicant and Mr Trott. Indeed, it is evident to me that Mr Hodge does not consider that Mr Trott is capable of effectively managing the vineyard and has disagreed with many of the decisions he has subsequently made.

[42] In light of this change, another person, Mr Auricht, was employed by Wilpena on or around 6 August 2020 with a view to performing some of the managerial/supervisory functions previously performed by Mr Hodge. However, the evidence reveals that up until the changes subsequently introduced by Wilpena, Mr Auricht was principally undertaking tractor work and Mr Trott was performing most of the vineyard management roles. However, Mr Auricht was also assisting Mr Trott with scheduling work and other such activities.

[43] During much of 2020, Mr Trott was holding discussions with Ms Trott, the owner and director of the business, about potentially selling off Wilpena. The context for this was Mr Trott’s concerns about his personal health and the yield and price for grapes. In June 2020, Mr Trott and Ms Trott also sought advice from a rural financial counsellor about options to reduce the stress upon Mr Trott of running the vineyard and decrease its operational costs. No decisions or actions were taken as a result of those discussions at that point.

[44] The original financial counsellor left the rural business support organisation and Mr Stanton became the new rural financial counsellor. Ms Trott and Mr Trott met with Mr Stanton on 28 January 2021. In this meeting, Mr Stanton recommended that Mr Trott take at least a year off from managing Wilpena Vineyards to help improve his well-being. To assist with this, he made a number of recommendations about options to streamline and revamp the vineyard’s operations. The options included outsourcing most or all of the vineyard work including;

• Outsourcing total managerial control to an external property manager; or

• Maintaining internal managerial control of the business but all hands-on work would be outsourced to contractors.

[45] Mr Stanton also recommended that the Trotts speak to a particular contractor to explore options for outsourcing managerial control of the business to that organisation. Having done so, Wilpena decided to trial the contractor by utilising its services to conduct harvesting work for the 2021 vintage in March and April 2021.

[46] In light of that experience, Wilpena reviewed its operations and in late March 2021 (just prior to Easter) determined that it no longer required full time ‘hands on’ assistance in the vineyard. Mr Hodge was the only person employed in that role. As a result, it made the definite decision to proceed with a review of its staffing arrangements and decided that the duties Mr Hodge was performing could also be outsourced, but with some duties picked up by Mr Trott and Mr Auricht. This would involve the “redundancy” of Mr Hodge’s position.

[47] At the time of the events immediately leading to the dismissal of Mr Hodge, the Respondent employed 5 staff; namely Mr Trott, Mr Hodge, Mr Auricht and 2 office “bookkeepers”.

[48] In April 2021, Mr Hodge’s duties principally involved a ‘hands on’ role which included general vineyard labouring duties such as pruning, training vines and operating machines (other than tractors). From time to time, Mr Hodge’s role also included showing contractors what work was required and checking on progress, but he was not supervising the main contract labour as he had done as the Vineyard Manager. As outlined earlier, the management of the vineyard was principally being undertaken by Mr Trott, with some assistance from Mr Auricht.

[49] Having made the decision to restructure its staffing, Ms Trott took some professional advice about the proper approach to implementing that decision. On 6 April 2021, Ms Trott received that advice and prepared a notice to be given to Mr Hodge in line with that information.

[50] There is a dispute as to whether Mr Hodge was on forced leave on 6 April 2021. The evidence about the circumstances of him not being at work on that day and for the balance of that week is not clear. It is sufficient for me to deal with this matter on the basis that Mr Hodge was absent on what he may have understood to be leave and that Wilpena did not accept that status, either at that time or now. At best from Mr Hodge’s case, there was a misunderstanding about whether he was on leave at that point and Ms Trott’s evidence about the discussion conducted on 9 April 2021 (set out below), is more consistent with the fact that this initial period was not authorised leave.

[51] Ms Trott attended the workplace on 6 April 2021 and had intended to personally hand the notice to Mr Hodge and discuss its contents. Upon being advised that Mr Hodge was not at work and was in the Clare Valley, and after unsuccessfully attempting to reach him by phone, Ms Trott sent an email advising of the wish to consult on a proposed workplace change with the following notice attached:

“… …

Notice of potential Workplace Change

As discussed, I write to inform you that we have recently made a decision that may have a significant effect on your employment with us.

The decision is to undertake a review of the requirements of the Wilpena Vineyards business operations.

As part of this review process, we will consult with you to determine what role you may have with us. The focus of our review is to streamline operations for our current and future needs.

We will endeavour to mitigate any changes that may have an adverse effect on your position. If it is found there aren't any available positions suitable for you, regrettably this means that your position with us may be made redundant, meaning your employment maybe terminated.

I anticipate completing this review and advising you of the outcome within one week.

During this consultation period, you are welcome to put forward suggestions to assist us in making the right decisions to best serve the interests of all parties.

Should you require any further information or wish to discuss anything further about this letter, please don't hesitate to contact me at your convenience.

Yours sincerely,

Sue Trott Director” 10

[52] Later on 6 April 2021, Mr Hodge confirmed with Ms Trott that he had received the letter.

[53] On 8 April 2021, Ms Trott sent a further email 11 to Mr Hodge encouraging him to provide further input about the potential workplace changes including “any thoughts, ideas or suggestions you may have regarding our business operations, particularly in the area you work.” In this email, Ms Trott supported Mr Hodge’s earlier suggestion to take advice from the Fairwork Ombudsman (FWO), sought a further discussion on the following day, and invited Mr Hodge to suggest a time to call or to meet with her face to face to discuss the changes.

[54] On or about 10 am on 9 April 2021, Ms Trott called Mr Hodge and the telephone discussion included the following elements:

• Mr Hodge disputed the foreshadowed redundancy and advised that he would go to the FWO.

• Ms Trott explained, in effect, that Wilpena no longer required his position due to a range of factors including that the “supervision” of individual contract workers (on ABNs) was not sustainable for a number of individual reasons and because Mr Hodge had previously indicated that these workers only came to the Respondent’s business because of him.

• Mr Hodge disputed the above and maintained that there was plenty of work available for him to perform in the Vineyards.

• Ms Trott confirmed that Wilpena no longer needed a person at level 5 to “supervise” contract labour.

• Ms Trott and Mr Hodge discussed their competing perspectives as to why there were difficulties with the previous year’s pruning.

• Ms Trott also advised that were now planning to (fully) outsource the pruning. Further that as a result of advice from a Rural Counsellor who had suggested that they may need to consider outsourcing all the vineyard operations for a couple of years, they had trialled the contract harvesting and would now outsource other work and were not seeking to place anybody in this position; being the Grade 5 Vineyard worker.

• Mr Hodge maintained his recent absence was due to him being forced to take holidays at a time not suitable to himself as he wanted to take leave during the school holidays. Ms Trott advised that the (later) dates 12 to 16 April that he was requested by the business to have as leave were in fact school holidays as he had sought.

• When asked why he hadn’t worked from 6 to 9 April, Mr Hodge advised that he had organised to take the Thursday before Easter off to have a longer break and now wants this as sick leave because he went to the dentist.

• Mr Hodge raised concerns about what he saw as the poor treatment of workers by Wilpena, and suggested that the employer did not appreciate his work and how much he had improved the vineyards.

[55] During the 9 April 2021 discussion, Mr Hodge disputed the basis of the foreshadowed redundancy and sought to remain employed, but did not advance any alternatives to that course of action for Wilpena to consider beyond not proceeding with the change.

[56] Later on 9 April 2021 Ms Trott met with Mr Trott and they agreed that the issues put forward by Mr Hodge did not lead to an alteration of its plan to restructure the business and they concluded that there were no positions that Mr Hodge could fulfill within the business. Consequently, they agreed to proceed with termination.

[57] Mr Hodge was on annual leave at that point but was due to return for work on 19 April 2021.

[58] On 19 April 2021, Mr Hodge did not attend for work at the normal time as was expected by Wilpena. At around 8.00 am, Ms Trott called Mr Hodge and advised him of the decision to proceed with the dismissal and indicated that they could meet in person or the paperwork could be provided by email or post. An email was then sent and the letter attached to the email read as follows:

“… …

Dear Jamie

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Wilpena Vineyards (the Employer/us/we), of its operational requirements, and what this means for you.

On 6th April 2021, I advised you in writing we were undertaking a review of our business operations. Further, we consulted with you to determine what part you might play in the future operations of the business. As a result of changes in our operational requirements, the position of Grade 5 Vineyard worker is no longer needed. We have given consideration to an alternative position within the business, however al this time, we are unable to provide another position for you.

Regrettably this means your employment with us will terminate in accordance with the Fair Work Act, NES and your employment agreement.

This decision is not a reflection of your performance.

Notice Period – End date of Employment

Based on your length of service with us, and in accordance with your Employment Agreement, your notice period is two (2) weeks. In accordance with NES, as you are over 45 years old, you are entitled to an additional one (1) week's notice.

You are not required to work your notice period as we will pay this to you in lieu of working,

Payments

For the purpose of determining eligibility to redundancy pay, an employer who employs fewer than 15 employees at the time when notice is given, is considered a Small Business, and is not required to make redundancy/ severance payments. Wilpena Vineyards is deemed a small business.

When calculating your accrued annual leave entitlements, we have added the 3 weeks notice period to your length of employment, for an effective end date of employment 7th May 2021.

Please find attached a final pay advice/summary detailing payment to be made to you on 29^th April 2021.

In addition, please find attached ‘'Notice of Termination and Redundancy Pay and the National Employment Standards’ document from the Fair Work Ombudsman.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at thank you for your contribution during your employment with us, and we wish you every success in the future.

Please contact me if you want to obtain a separation certificate, or, if you would like me to provide a verbal reference in the future.

Yours sincerely,

Sue Trott, Director.” 12

[59] At approximately 12:30 pm on 19 April 2021, Ms Trott called Mr Hodge to confirm whether he wanted to meet in person, and in light of the (negative) response, Ms Trott also posted a copy of the letter to Mr Hodge via registered post.

6. The proper approach to the meaning of ‘genuine redundancy’ under section 389

[60] I will shortly turn to the major issues that arise in this matter. However, before doing so it is appropriate to consider the Commission’s approach to s.389 of the FW Act more generally as it might impact upon those major issues.

[61] I have set out the terms of ss.385 and 389 of the FW Act earlier.

[62] The Explanatory Memorandum to the Fair Work Bill 2008 explained the meaning of ‘genuine redundancy’ as follows:

“Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is 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, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”

[63] Given s.385(d) of the FW Act, the fundamental question which arises is whether the Commission is satisfied that the dismissal was not a case of genuine redundancy. The respondent bears an evidentiary onus to demonstrate the factual elements of the objection. 13

[64] In Ulan Coal Mines Limited v John Howarth and others¹⁴ (Ulan Coal v Howarth), a Full Bench of the Commission held that:

“[17] 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:

“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.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” (at par [27])

[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.”

[65] The FW Act does not define the term ‘operational requirements’. It is a broad term that permits consideration of many matters including:

• the past and present performance of the business;

• the state of the market in which the business operates;

• steps that may be taken to improve efficiency by installing new processes, equipment or skills, or by arranging labour to be used more productively, and

• the application of good management to the business.¹⁵

[66] In Christina Adams v Blamey Community Group,¹⁶the Full Bench of the Commission stated that task under s.389(1)(a) of the FW Act in the following terms:

“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”17

[67] Section 389(1)(b) requires compliance with the consultation requirements of, in this case, a modern award. I will deal with the application and requirements of this provision and the Award shortly.

[68] In terms of s.389(2) of the FW Act, a Full Bench in the Ulan Coal matter¹⁸ observed:

“[26] First, s 389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s 389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s 389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

[69] The approach adopted in the above matter should also be considered in light of the following comments of a later Full Bench 19 of the Commission:

“[34] Honeysett is authority for the proposition that for the purpose of s.389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer’s enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, ‘[T]he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”.

[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.” (Citations omitted)

[70] It is clear on the above authorities that the justification for the dismissal – whether the employer no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements, is to be assessed objectively based upon the evidence about the circumstances at that time. The Commission must also be satisfied that the dismissal is the result of the organisational change and not some ulterior motive. Further, although evidence of later events may be relevant to ascertain the veracity of the facts – such as whether the job is no longer required and what alternatives existed, the reasonable redeployment prerequisite is also to be assessed having regard to all of the circumstances in existence at that time and not based upon later developments not known or reasonably understood at that time.

[71] The scope of s.389(1) and s.389(2)(a), and the reference to the employer’s “Enterprise” and whether this extends to the work undertaken by external contractors, is very much alive given the circumstances of this matter.

[72] “Enterprise” is defined in s.12 of the FW Act as meaning “a business, activity, project or undertaking.”

[73] This aspect was recently discussed by a Full Bench in Helensburgh Coal Pty Ltd v Neil Bartley and others 20 (Helensburgh) and the following approach arises from that decision:

• The meaning of “enterprise” should be consistent when applied to both s.389(1) and s.389(2)(a) of the FW Act; 21

• A redundancy under s.389(1) of the FW Act may arise where an employer outsources work to a contractor because the operational changes (and the change in requirements) may involve only a part of the employer’s enterprise; 22

• In terms of redeployment, the assessment of what was (not) reasonable in all of the circumstances is to be made having regard to all of the relevant circumstances in each case and the prospect of redeployment to the work conducted by contractors is not automatically excluded from such consideration; 23 and

• Amongst other issues to be considered in terms of potential redeployment to positions undertaken by a contractor, the Commission might consider the degree of control exercised by the employer, the nature of the work and the history of the contracting, the employer’s business strategy and the fact that it may not be reasonable to create positions or displace others. These are not binding principles and all relevant matters are to be considered. 24

7. Was the dismissal of Mr Hodge a case of genuine redundancy?

7.1 Job no longer required by the employer due to changes in operational requirements of the employer’s enterprise

[74] It is appropriate to initially consider whether there was, in fact, a change in operational requirements.

[75] To the extent that Mr Hodge contends, in effect, that the economic and business rationale has not been demonstrated by evidence and is disputed by him, this is not directly relevant to the immediate issue. That is, the Commission must be satisfied that there were, in fact, operational changes, and that this led to the change in job requirements. I accept that the complete absence of any explanation for the purported operational changes might cast doubt about whether they had taken place, but the Commission does not need to assess the substantive merit of the changes, at least for the purposes of s.389(1)(a) of the FW Act.

[76] In this case, the evidence does reveal an objective rationale for the change. That is, in an endeavour to reduce Mr Trott’s practical involvement in running the vineyard, the Trotts had taken advice about alternative models for engaging and supervising the contractors and having the hands-on work performed. Having successfully trialled the extended use of a particular contractor to perform the 2021 vintage (harvest) a decision was then made to extend the use of that contractor to involve almost all of the hands-on work in the vineyard including the supervision of the workers undertaking those functions. This model was designed to utilise the economies of scale of a group of workers, with capacity to flex up and down to meet the evident seasonal demands. This in turn, when fully operational, would mean that Mr Trott could progressively reduce his active involvement in the business, which has subsequently occurred in practice. 25

[77] Two further aspects arise given the contentions advanced in this matter. Firstly, whether the dismissal was the result of the operational change, as contended by Wilpena, or due to the Applicant’s “failure” to attend for work on 6 April 2021, as impliedly contended by Mr Hodge. The evidence is consistent with the dismissal being the consequence of the decision taken by Wilpena to proceed with the operational change. This fits with the objective sequence of events and with the evidence of Ms Trott, which I accept.

[78] I turn now to consider the second aspect; namely whether this change led to Mr Hodge’s job no longer being required.

[79] I accept Mr Hodge’s contention that many duties associated with his job as a Vineyard worker continue to be undertaken by external contractors and by Mr Trott and Mr Auricht. It is clear that a vineyard will require the hands-on work of the nature he had been undertaking to be performed into the future. Further, someone, either directly engaged by Wilpena or within the contractor’s business, will need to show the individual workers what is required and to check on progress etc.

[80] However, for reasons previously outlined, when consideration is given to whether changes in the operational requirements means that the person's job is no longer required to be performed by anyone, the test is not whether the particular duties performed by the dismissed employee survive the changes. Duties can be permissibly redistributed to other employees or to contractors. The question is whether the job previously performed by Mr Hodge still exists.

[81] Further, the process of selecting which job is to be made redundant is not relevant to determining whether a dismissal is a genuine redundancy, provided that the job is not required due to the operational changes and the other requirements of s.389 of the FW Act are met.

[82] I am satisfied that there was a change in operations which meant that the job undertaken by Mr Hodge was no longer required. This includes the large majority of the hands-on work and the work to “supervise” the contractors, that will be undertaken by the contractor with their workers, and the remaining staff of Wilpena. The evidence also supports the contention that the staffing within Wilpena was reduced by the full-time role undertaken by the Applicant.

[83] Accordingly, I find that Mr Hodge’s job was no longer required by Wilpena due to changes in operational requirements within its enterprise. This satisfies the requirements of s.389(1)(a) of the FW Act.

7.2 Compliance with consultation requirements of a modern award or enterprise agreement

[84] Clause 30 of the Wine Industry Award 2020 provides as follows:

“30. Consultation about major workplace change

30.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

30.2 For the purposes of the discussion under clause 30.10, the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

30.3 Clause 30.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

30.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.10.

30.5 In clause 30:

significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or.

(g) job restructuring.

30.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.”

[85] Wilpena faintly contended that this provision did not apply in this case as the termination of employment only involved one position. This relied upon the observations made by the Full Bench in Tsiftelidis v Crown Melbourne Limited. 26 That is, this was not a major change as contemplated by clause 30.1 of the Award. However, the case has proceeded on the basis that the provision was applied as part of the process adopted by the employer and was met by it through the actions undertaken.

[86] Adopting that approach, in order to satisfy s.389(1)(b), I must consider whether Wilpena has complied with this consultation obligation in relation to Mr Hodge’s redundancy.

[87] Clause 30 is a standard provision found in most modern awards. Its origins and intent were explained, in part, by the Full Bench in Consultation Clause in Modern Awards 27 as follows:

“[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy:

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according to the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that?”. Only in the latter case is there “consultation.”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

• to provide information about the change; and

• to provide an opportunity for affected employees to give their views about the impact of the change; and

• to consider any views about the impact of the change that are given by the employees.” [Citations omitted]

[88] Clause 30 required that Wilpena:

• Give notice, in writing, to all employees who may be affected after it has made a definite decision to make the relevant major change.

• Provide in the written notice all relevant information about the changes including their nature, their expected effect on employees; and any other matters likely to affect employees.

• Commence discussions with the relevant employees as soon as practical after the definite decision has been made.

• Discuss the introduction of the changes, their likely effect on employees, and measures to avoid or reduce the adverse effects of the changes on employees through a process that provides the affected employees with a genuine opportunity to advance their perspectives.

• Promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.1(b).

[89] The immediate issue that arises is at what point a relevant definite decision was made.

[90] Although not articulated by Mr Hodge in these terms, it is conceivable that the definite decision was made when Wilpena explored the options for greater use of contractors. This had the potential to lead to the outcome that eventuated. However, on balance I consider the definite decision to implement the “major” change in this case was after the employer had trialled the particular contractor. By itself, this was not significantly different to earlier use of contractors but did lead to the confidence to use that contactor more extensively, including to almost remove all inhouse management and supervision of the contract labour and much of the hands-on work.

[91] The evidence of Ms Trott, 28 which I accept, is that the decision to proceed with an actual change to future operations was made in late April 2021 at or near to the end of the vintage.

[92] As a result, I consider that the definite decision to make the major change was made in late March 2021.

[93] By reference to that decision, I turn to the requirements set out above:

Give notice, in writing, to all employees who may be affected after it has made a definite decision to make the relevant major change.

Provide in the written notice all relevant information about the changes including their nature, their expected effect on employees; and any other matters likely to affect employees.

[94] On balance, I consider that the notice provided by Wilpena, via Ms Trott’s email to Mr Hodge on 6 April 2021, met those requirements. It was rudimentary in terms of the details of the proposed change; however, this was provided in the context of a very small workforce with Mr Hodge being aware of the nature of the Respondent’s operations, having previously been the Vineyard Manager. Further he was the only (principally) hands-on employee in the business and the notice advised, in effect, that the employer was reviewing its operations to streamline its business, this involved consideration of what role he may have with the business, with the likely result being that his position would no longer be required. The notice also sought any suggestions from Mr Hodge to assist the “right” decisions to be made.

[95] Whilst I accept that in other circumstances more details may be required, in this case, as a result of the context and the notice (supported by the associated discussions) Mr Hodge reasonably understood what was proposed and strongly rejected the notion that his job could be outsourced and that it was not going to be required into the future.

Commence discussions with the relevant employees as soon as practical after the definite decision has been made.

Discuss the introduction of the changes, their likely effect on employees, and measures to avoid or reduce the adverse effects of the changes on employees through a process that provides the affected employees with a genuine opportunity to advance their perspectives.

[96] Wilpena sought to commence discussions with Mr Hodge within reasonable proximity of the definite change and given the circumstances, this was as soon as practical after that point. The circumstances include the nature of the business, the need to take advice about the proper process and the whereabouts of Mr Hodge. The communications, both in writing and via Ms Trott’s telephone and text contacts, invited discussions and sought to undertake this.

[97] Although it would have been preferrable to have earlier advised Mr Hodge about the fact that advice was being sought, this was not required by the Award in the circumstances of this matter. Further, I observe that the relationship between Mr Hodge and Mr Trott was problematic and this was likely to be a factor in terms of not adopting a more collaborative approach before the decision was made.

[98] Although there was no in-person meeting with Mr Hodge, this was offered and a genuine opportunity was provided to the Applicant to express his views. Indeed, Mr Hodge strongly advanced his view against the change.

Promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.1(b).

[99] Although there was no agreement and no change was made to the proposal, this was not required in order to meet the relevant obligations. The only views expressed by Mr Hodge was, in effect, to dispute the rationale for the change itself. This was considered and rejected by Wilpena.

[100] In this regard, I observe that the consultation obligations require that the information, including the foreshadowed consequences, be provided and the consultation occur after a definite decision to make the major (organisational) change has been made. This was the context for the process set out above. I accept that this had a tendency to make the consultation look to Mr Hodge as being disingenuous; however, the objective evidence supports Wilpena’s contentions as found above.

[101] In the circumstances I do not consider that the disputed status of Mr Hodge’s “leave” is significant, given the provision of the relevant information and the opportunities provided to make a response and hold discussions – which occurred.

[102] For all of the reasons given, on balance I am satisfied that Wilpena has complied with the relevant modern award consultation provision concerning Mr Hodge’s redundancy. This satisfies s.389(1)(b) of the FW Act.

7.3 Reasonable redeployment

[103] The precise test established by s.389(2) of the FW Act in this case is whether it would have been reasonable in all of the circumstances for the person, Mr Hodge, to have been redeployed within the employer’s enterprise. A finding that it was reasonable would mean that there was not a genuine redundancy. For reasons outlined earlier, this involves consideration of all relevant circumstances at the time of the dismissal.

[104] Further, in making that assessment, the Commission must find on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding. 29 The job or jobs concerned must also 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 within a reasonable period of retraining.30 The scope of this consideration also potentially includes work within contracted out functions if this is within the employer’s enterprise.

[105] Given Mr Hodge’s attitude to the contactor organising and supervision role previously undertaken when he was the Manager of the vineyard, the fact that Mr Auricht was engaged in a wider role that included those aspects and had some additional skills, 31 and the absence of other available positions within Wilpena, I am satisfied that there were no reasonable redeployment options within the direct business of the Respondent.

[106] In terms of the potential for outsourced work, the model implemented by Wilpena does not involve control as to how that is organised and which workers are utilised. Further, although there is likely to be work performed over various stages of the year, it is significantly seasonal in nature. In these circumstances I also do not consider that this work within the enterprise of Wilpena represents a reasonable redeployment option.

[107] Even if the other businesses controlled by the Trotts were associated businesses for the purposes of s.389(2) of the FW Act, the evidence is that they do not have any employees and there are no positions into which Mr Hodge could be redeployed.

[108] As a result, and having regard to the earlier findings on this aspect, I find that it would not have been reasonable in all of the circumstances for Mr Hodge to have been redeployed within the employer’s enterprise. This means that Wilpena has demonstrated that s.389(2) of the FW Act does not operate in this case to mean that Mr Hodge’s dismissal was not a case of genuine redundancy.

8. Conclusions

[109] Given the above findings, I am satisfied that Mr Hodge’s dismissal was a case of genuine redundancy within the meaning of s.389 of the FW Act. As a result, under s.385, a finding that he was unfairly dismissed is not available and there is no jurisdiction for the Commission to make that assessment.

[110] The unfair dismissal application itself must be dismissed and an Order 32 to that end is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

J Hodge, the Applicant on his own behalf.

T Earls, of Fair Work Lawyers, with permission on behalf of Wilpena Vineyards Pty Ltd, the Respondent.

Hearing details:

2021
August 2
Video Hearing.

Printed by authority of the Commonwealth Government Printer

1 Section 23 of the FW Act – this was not disputed by Mr Hodge.

2 Section 119 and 121 of the FW Act.

3 Section 396(d) of the FW Act.

4 Under s.596 of the FW Act. The request was opposed. Reasons for permission were provided separately to the parties and related to the fact that the hearing of this matter was being undertaken by MS Teams video and it was highly desirable in terms of efficiency to have the Respondent’s witnesses coordinated by their lawyer using appropriate facilities.

5 Exhibit R1.

6 Exhibits R2 and R3.

7 Exhibits R4 and R5.

8 Confirmed in transcript PN33.

9 Exhibit A1.

10 ST-4, attached to exhibit R4.

11 ST-6, attached to exhibit R4.

12 ST-8, attached to exhibit R4.

13 See Teterin and others v Resource Pacific Pty Limited t/a Ravensworth Underground Mine[2014] FWCFB 4125 at [27] to [29] and [32].

14 (2010) 196 IR 32.

15 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

16 [2016] FWCFB 7202.

17 [2016] FWCFB 7202.at [14].

18 Ulan Coal Mines Ltd v Honeysett and Murray v Ulan Coal Mines Ltd (2010) 199 IR 363.

19 Technical and Further Education Commission T/A TAFE NSW v L. Pykett[2014] FWCFB 714.

20 [2021] FWCFB 2871.

21 Helensburgh at [46].

22 Helensburgh at [52] by reference to Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows[2012] FWA 3126.

23 Helensburgh at [54] to [68].

24 Helensburgh at [69].

25 Confirmed in the evidence of Mr Trott and Ms Trott.

26 [2016] FWCFC 4675 at [32]-[33].

27 [2013] FWCFB 10165.

28 Including at transcript PN529.

29 Technical and Further Education Commission T/A TAFE NSW v Pykett[2014] FWCFB 714 at para [36].

30 Ibid and Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578 at para [34].

31 Mechanical skills - transcript PN371.

32 PR733035.

Jamie Hodge v Wilpena Vineyards Pty Ltd

[2021] FWC 4668

26 AUGUST 2021

DECISION