Kauri Taumaunu v United Personnel Traffic Pty Ltd
[2025] FWCFB 181
•14 AUGUST 2025
| [2025] FWCFB 181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Kauri Taumaunu
v
United Personnel Traffic Pty Ltd
(C2025/4008)
| VICE PRESIDENT GIBIAN | SYDNEY, 14 AUGUST 2025 |
Appeal against decision [2025] FWC 1365 and order PR787373 of Commissioner Durham at Brisbane on 16 May 2025 in matter number U2025/13 – Finding of genuine redundancy – Whether the Commissioner correctly considered the consultation obligations under the relevant enterprise agreement – Availability of an appeal in unfair dismissal proceedings – Whether it is in the public interest for permission to appeal to be granted – Permission to appeal granted and appeal allowed – Application remitted.
Kauri Taumaunu has lodged an appeal, for which permission is required, against a decision and order of Commissioner Durham issued on 16 May 2025.[1] The decision concerns Mr Taumaunu’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in respect of the termination of his employment with United Personnel Traffic Pty Ltd (the Respondent).
In the decision, the Commissioner determined that Mr Taumaunu’s dismissal was a case of genuine redundancy and dismissed his application. Mr Taumaunu contends in his appeal that the decision is attended by appealable error in a number of respects.
Relevant background
Mr Taumaunu was employed by the respondent from 28 November 2022. At the time of the cessation of his employment, Mr Taumaunu was a permanent employee, having converted from casual employment pursuant to the terms of the United Personnel Pty Ltd and CFMEU Union Collective Agreement 2023-2027 (the Agreement) which covered and applied to him in his employment.
On 19 November 2024, Mr Taumaunu and all of the respondent’s permanent employees, received a text message from the respondent’s Operations Manager, Mr Tihema Miller, with the subject line, Important Update on Employment Status. The text message provided as follows:
Dear Team,
I hope this message finds you well. I want to take a moment to address an important update regarding employment at United.
Due to current capacity constraints, from today we are unable to maintain all full-time positions at this time. As a result, we are implementing options for affected employees:
1. Reversion to Casual Employment: Employees may choose to revert to casual status effective immediately.
2. Redundancy Option: Alternatively, if you prefer, we can proceed with making your position redundant. In this case, you will receive a payout of all entitlements, after which you will still have the option to revert to casual employment.
We understand that this may be a challenging transition, and we are here to support you through this process. Please don’t hesitate to reach out if you have any questions or need further clarification.
Thank you for your understanding and cooperation.
Best regards,
T
Upon receiving this message, Mr Taumaunu telephoned Mr Miller. Mr Taumaunu’s evidence was that Mr Miller advised him that “it was nothing to worry about”. Mr Taumaunu further stated that Mr Miller explained to him that “everyone was receiving the same notice”, or words to that effect.
On 10 December 2024, Mr Miller sent an email to Mr Taumaunu and all the respondent’s permanent employees. This email contained the same content as the 19 November 2024 text message. Mr Taumaunu’s evidence was that the issue was not otherwise the subject of discussion with him, and he felt “blindsided”.
On 12 December 2024, Mr Taumaunu contacted the respondent’s union delegate, who was unaware of the email. The delegate otherwise informed Mr Taumaunu that she believed that the redundancy was genuine and that a shortage of work meant “everyone would be going back to casual employment”.
Mr Taumaunu telephoned Mr Miller on 13 December 2024, who confirmed with Mr Taumaunu that his permanent position was being made redundant. Mr Miller advised that Mr Taumaunu could remain employed as a casual employee if he wished to. Later that day, Mr Taumaunu sent an email in response to Mr Miller’s 10 December 2024 email in which he stated as follows:
Dear team
I understand and will be accepting redundancy effective immediately.
I would like a letter of termination to allow me to take my BERT out please.
Thank you.
The reference to “BERT” in Mr Taumaunu’s email is an acronym used for the Building Employee Redundancy Trust. It is not in dispute that Mr Taumaunu’s employment ceased with effect on 13 December 2025.
Mr Taumaunu filed his application for an unfair dismissal remedy on 1 January 2025. The application variously contended that the correct procedures in the Agreement were not followed, including that there was no consultation prior to the dismissal, nor communication with the union about the redundancies. The application also stated that there was no evidence that Mr Taumaunu’s position was no longer required, nor that reasonable redeployment opportunities had been considered for him.
The Respondent initially objected to Mr Taumaunu’s application on two grounds. First, it said that Mr Taumaunu was not dismissed by it (the respondent contended that Mr Taumaunu was given two options and chose to be made redundant rather than to convert to casual employment). Second, it said that the dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. The application was listed for a jurisdictional hearing before the Commissioner to determine these objections. However, it does not appear to be in dispute that the only issue that was pressed and the subject of evidence at the jurisdictional hearing was the genuine redundancy objection.
The decision
In the decision, the Commissioner set out the background to Mr Taumaunu’s application and the parties’ respective submissions, before turning to consider the respondent’s objection that the dismissal was a case of genuine redundancy. The Commissioner did so by reference to the relevant statutory framework under the Act, noting that s 385(d) of the Act makes a finding by the Commission that the dismissal was not a case of genuine redundancy, a requisite element of a finding that a person has been unfairly dismissed.
The Commissioner proceeded by setting out s 389 of the Act, which defines when a dismissal is, or is not, a case of genuine redundancy. It provides as follows:
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.
Clause 10 of the Agreement provides for relevant consultation obligations for the purposes of s 389(1)(b). Clause 10.3 imposes certain notification obligations upon the Respondent if it is considering making a decision, and prior to the decision being made:
Consultation about major workplace change
10.3If the Employer is considering making a decision, and prior to the decision being made, to introduce a major workplace change that is likely to have a Significant Effect on a number of Employees, the Employer must notify those Employee(s) and the Union.
Clauses 10.4 to 10.8 set out the substantive consultation obligations:
10.4As soon as practicable and prior to implementation the Employer must discuss with the Employees and the Union the introduction of the change; and the effect the change is likely to have on the employees. The Employer must discuss measures to avert or mitigate the adverse effect of the change on the Employees.
10.5 For the purposes of the discussion the Employer will provide the Employees, the Union and/or their nominated representative/s in writing:
(a) All relevant information about the change including the nature of the change proposed
(b) Information about the expected effects of the change on the Employees; and
(c) Any other matters likely to affect the Employees.
10.6However, the Employer is not required to disclose confidential or commercially sensitive information.
10.7 The Employer must give prompt and genuine consideration to matters raised about the major change by the Employees and the Union.
10.8 "Significant Effect" under clause 10.3 above includes termination of employment (including redundancy), major changes in the composition, operation or size of the Employer’s workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; changes to safety and/or management systems, any changes to employment practices that result in privacy concerns for employees such as implementation of electronic inductions and/or access systems; the need for retraining or transfer of Employees to other work areas or locations and the restructuring of jobs.
The Commissioner commenced her analysis by considering whether Mr Taumaunu’s role was required to be performed because of changes to the operational requirements of the respondent’s enterprise (s 389(1)(a)). The Commissioner accepted Mr Miller’s evidence that there had been a downturn in work and the respondent did not have sufficient work to maintain the roles of its 13 permanent employees. While the Commissioner acknowledged Mr Taumaunu’s submission that the respondent engaged 32 casual employees at the relevant time, she accepted Mr Miller’s evidence that they did not work full time hours and did not work on a regular and systematic basis. This latter position was said to be supported by the fact that the casual employees had not been converted to permanent employment pursuant to the terms of the Agreement.
The Commissioner also considered Mr Taumaunu’s contention that the functions of his job remained following his redundancy but were being performed by the casual employees. However, as the Commissioner correctly identified, a job involves a collection of functions, duties and responsibilities and in this case, those duties had been redistributed. In these circumstances, the Commissioner was not persuaded that the distribution of Mr Taumaunu’s duties gave rise to a conclusion that his job is still being performed. The Commissioner therefore concluded that the consideration in s 389(1)(a) was satisfied, and the respondent no longer required Mr Taumaunu’s job to be performed by anyone because of changes in the operational requirements of its enterprise.
As to s 389(1)(b) of the Act, the Commissioner considered whether the respondent had complied with the obligations which she had identified arise in the Agreement to consult about the redundancy. The Commissioner also acknowledged that clauses 42.1 and 42.2 of the Agreement were relevant. Those clauses provide an additional consultation obligation upon the respondent to consult with the union prior to making any decision to terminate an employee by reason of redundancy. In respect of this obligation, the Commissioner accepted Mr Miller’s uncontested evidence that he consulted with the union, and that the union provided him with “relevant wording” for the 19 November and 10 December 2024 communications to employees.
The Commissioner then considered the respondent’s obligations under clause 10 of the Agreement. The Commissioner regarded there to be two requirements prescribed by clause 10, which she expressed as follows:[2]
[35] …The requirements of clause 10 are twofold. Firstly, United are required to consult with the Union and secondly, they are required to discuss the change with the relevant employee. Clause 10.5 further provides that they are to provide employees with written advice regarding the nature of the change proposed. Information about the expected effects of the change on the employees, and any other matters likely to affect the employees.
For reasons that will shortly be explained, we consider that in summarising the respondent’s obligations to consult with its employees in this way, the Commissioner misstated the requirements of clause 10 of the Agreement and consequently fell into error. The Commissioner proceeded by deeming it to be “uncontroversial” that Mr Taumaunu and his colleagues received two separate communications from the respondent advising that redundancies would be necessary due to a downturn in business. The Commissioner recorded her view that these communications included information regarding the impact on employees and they also encouraged employees to contact Mr Miller with questions or requests for further information.
The Commissioner recorded her satisfaction that the respondent met its obligations to consult with the union prior to making Mr Taumaunu’s position redundant. As to its obligations with respect to the employees, the Commissioner relevantly found as follows:[3]
[38] …With respect to the requirement to discuss the changes with employees, I note Mr Taumaunu’s submissions that he felt “blindsided” when he received the 10 December 2024 email as the issue had not been discussed with him at work.
[39] Whilst I accept that Mr Taumaunu would have preferred to discuss the situation in person with Mr Miller, the Agreement does not require this. I also note that Mr Miller provided Mr Taumaunu with options for consideration and remained open to further discussion with employees should they require any further clarification. Mr Taumaunu did not take Mr Miller up on this offer before accepting the option of redundancy.
[40] Considering the above, I find that United complied with the consultation provisions of the Agreement.
Having accepted that the respondent’s decision was based on genuine operational requirements, in her consideration of the obligation in s 389(2) of the Act the Commissioner was satisfied that “the only remaining positions that the relevant employees could have been redeployed to were the casual roles”.[4] The Commissioner was satisfied that this redeployment option was offered to Mr Taumaunu but he declined to accept it. The Commissioner recorded her view that Mr Taumaunu’s decision not to accept the redeployment opportunity did not “negate the fact that United did offer an option for redeployment”. Accordingly, the Commissioner concluded that the Respondent “complied with their obligation to consider all reasonable options for redeployment”.[5]
Appeal grounds
Mr Taumaunu’s notice of appeal contains extracts of the decision together with responsive commentary. However, Mr Taumaunu also filed a written outline of submissions dated 13 June 2025, in which he summarised his concerns into six grounds of appeal. Taking into account each of these documents, we understand that Mr Taumaunu seeks to challenge the decision on the basis of the following matters:
(1) Appeal ground 1 – substantive unfairness: Mr Taumaunu contends that:
(a)following his redundancy, casual employees were allocated Mr Taumaunu’s job duties and full time hours, contradicting the respondent’s position that his job was no longer required; and
(b)the offer of casual employment was not a genuine redeployment opportunity.
(2) Appeal ground 2 – consultation: Mr Taumaunu contends that the respondent failed to comply with the following terms of the Agreement:
(a)clause 10 which requires consultation with affected employees and the union in relation to major workplace change; and
(b)clause 42.1 which requires consultation with the union prior to any redundancy decision.
(3) Appeal ground 3 – failure to notify Construction Income Protection Queensland of sick leave entitlements: Mr Taumaunu contends that the respondent did not report unused sick leave entitlements to Construction Income Protection Queensland in accordance with portable sick leave obligations.
(4) Appeal ground 4 – wage deductions and overpayments: Mr Taumaunu contends that the respondent made deductions from his wages without transparency or agreement.
(5) Appeal ground 5 – Respondent’s lack of knowledge of the enterprise agreement: Mr Taumaunu contends that the respondent mishandled the dismissal process and breached its obligations under the Agreement by failing to understand its obligations under it.
(6) Appeal ground 6 – breach of enterprise agreement: Mr Taumaunu contends that the respondent failed to comply with clauses 42.7, 42.8, 42.9 and 42.11 which impose payment and other obligations upon the respondent following an employment cessation.
Applicable appeal principles
An appeal under s 604(1) of the Act may only be brought with permission of the Commission. Section 604(2) requires that the Commission must grant permission if the Full Bench is satisfied that it is in the public interest to do so. In most matters, the Commission otherwise has a broad discretion as to whether to grant permission to appeal.[6]
This appeal is one to which s 400(1) of the Act applies, because it is an appeal from a decision made under Part 3-2 of the Act. Accordingly, we must be satisfied that the grant of permission to appeal would be in the public interest, otherwise, we are required to refuse permission. The test in s 400(1) is a stringent one. It imposes a higher threshold for permission to appeal in respect of decisions in unfair dismissal proceedings.[7] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no general or residual discretion exists if that threshold is not met. Section 400(2) indicates a particular sensitivity with respect to revisiting factual findings made in unfair dismissal proceedings by limiting review on appeal based on an alleged mistake of fact to one that involves a significant error of fact. Section 400(2) represents a basal pre-condition to an exercise of power by the Full Bench to correct an error of fact.[8]
The task of assessing whether it is in the public interest to grant permission to appeal is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error or a preference for a different result.[10] The Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:[11]
...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Further, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[12] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
While the Respondent contends that Mr Taumaunu’s written material does not address the question of permission to appeal, we note that in his notice of appeal Mr Taumaunu submits that the issues raised in the appeal enliven the public interest. In addition, shortly prior to the appeal hearing before the Full Bench, Mr Taumaunu filed a further document which was said to constitute a response to the Respondent’s written submissions. This document contained both written submissions and new material that was not in evidence before the Commissioner at first instance.
At the hearing, noting that there was no objection raised by the Respondent to this course, the Full Bench exercised its discretion to take Mr Taumaunu’s further document into consideration insofar as it comprised submissions that Mr Taumaunu sought to rely upon in support of the appeal. The Respondent was afforded the opportunity to respond in writing to Mr Taumaunu’s further submissions, which it exercised.[13] We have taken each party’s submissions into consideration. To the extent that Mr Taumaunu’s further document contained new evidence, the Full Bench declined to receive the material for the purposes of considering Mr Taumaunu’s appeal and the parties were advised of this decision during the hearing.
Mr Taumaunu’s further submissions raise four key points which we consider develop the matters raised by Mr Taumaunu in appeal grounds 1 and 2. We agree that these grounds are at the heart of the appeal before us, which is focussed upon the question of whether the Commissioner erred when she concluded that Mr Taumaunu’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. As foreshadowed earlier in this decision, the appeal raises an issue concerning the Respondent’s compliance with its enterprise agreement in the context of considering whether the relevant consultation obligations have been met. Accordingly, we consider that the grant of permission in respect of appeal grounds 1 and 2 would be in the public interest for the purposes of s 400(1) of the Act. Accordingly, permission to appeal is granted in respect of these grounds.
We are not otherwise persuaded that the matters advanced by Mr Taumaunu pursuant to appeal grounds 3, 4. 5 and 6, in which Mr Taumaunu challenges the respondent’s compliance with obligations said to be owed to him under the terms of the Agreement, are sufficiently connected to the Commissioner’s decision that his dismissal was a case of a genuine redundancy or otherwise give rise to an arguable case of appealable error. We therefore decline to grant permission to appeal in respect of these appeal grounds.
Consideration
We commence by considering appeal ground 1(a). This ground concerns the Commissioner’s finding that the consideration in s 389(1)(a) was satisfied and the Respondent no longer required Mr Taumaunu’s job to be performed by anyone because of changes in the operational requirements of its enterprise. Having considered the material before the Commission, we consider that the Commissioner’s finding was open to her, having regard to the uncontested evidence of Mr Miller that there had been a downturn in work, such that the Respondent could not sustain the roles of its 13 permanent employees. The matters advanced by Mr Taumaunu do not provide a sufficient basis for overturning the Commissioner’s factual findings, nor is there any basis for concluding that the changes made by the Respondent were not genuine responses, directed towards addressing its operational needs. Section 389 of the Act was recently considered by the High Court in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. Steward J relevantly explained as follows:[14]
128 Section 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person's job to be performed by anyone. That is a choice which cannot be set aside or second-guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.
129 The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed "because of changes in the operational requirements of the employer's enterprise". However, an employer is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer's "enterprise" which is in issue. The decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the FW Commission, assuming it to be genuine. It is in that sense that the capacity to render a position redundant has been likened to an employer's "prerogative". As Ryan J observed in Jones v Department of Energy and Minerals:
"[I]t is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions."
(citations omitted)
In our view, the Commissioner correctly approached Mr Taumaunu’s contention that his job was still required, because his duties were being performed by casual employees. As the plurality in Helensburgh Coal said, s 389(1)(a) “does not look to whether the employee’s position, in terms of job title, was no longer required, but whether their “job”, in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else”.[15]
The fact that the duties of a particular job or position which has been abolished have been reallocated to another position or positions as part of an employer’s restructure, does not, of itself, alter the fact that the employer no longer requires that job to be performed by anyone.[16] Simply because some aspect of the employee’s duties is still required to be performed by somebody does not mean the employee cannot be redundant.[17] Where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. In Mr Taumaunu’s case, although some of the tasks previously assigned to him still had to be carried out, the distribution of those duties provided an evidentiary foundation for the Commissioner’s conclusion that his former position was rendered surplus because of changes to the Respondent’s operational needs.
In support of appeal ground 1(b), Mr Taumaunu contends that there was no effort by the Respondent to redeploy him. The evidence at first instance, which the Commissioner accepted, was that the only available positions to which the relevant employees could be redeployed were to casual roles. Mr Taumaunu was offered this option but declined to accept it. We are not persuaded that Mr Taumaunu has demonstrated that the Commissioner erred when she concluded that the Respondent complied with its obligation under s 389(2). However, for completeness, we note that the Commissioner’s statement in the final sentence of paragraph [43] misstates the statutory test, which is not whether the Respondent considered all reasonable options for redeployment, but rather whether it would have been reasonable in all the circumstances for the person to have been redeployed within the employer’s enterprise, or the enterprise of an associated entity.[18] This is not an error that gives rise to appealable error in this case, noting that the Commissioner correctly set out the statutory test at paragraph [41] of the decision and applied it – in our view, correctly – to the circumstances before her. It follows that we reject appeal ground 1.
Appeal ground 2 concerns Mr Taumaunu’s submission that the Respondent failed to consult both with him and the union. Mr Taumaunu contends in his further submissions that the Respondent did not comply with its consultation obligations and the Commissioner “gave no weight” to this failure in her consideration of whether the requirements of s 389(1)(b) were met.
So far as the Commissioner made findings about the extent of the Respondent’s consultation with Mr Taumaunu, those findings were as follows:[19]
(a)Mr Miller sent a text message on 19 November 2024 to all of the Respondent’s permanent employees, including Mr Taumaunu, advising that “from today we are unable to maintain all full-time positions” and that as a result, “we are implementing options” being the reversion to casual employment or “if you prefer, we can proceed with making your position redundant”.
(b)Mr Taumaunu telephoned Mr Miller upon receiving the 19 November 2024 text message was advised that “it was nothing to worry about” and that “everyone was receiving the same notice”.
(c)It was “common ground” that no further discussions were held between the respondent and Mr Taumaunu, other than an unrelated exchange regarding payment of a parking fine.
(d)Mr Miller re-sent the content of the 19 November 2024 text message in an email to all permanent employees of the respondent, including Mr Taumaunu, on 10 December 2024.
(e)Mr Taumaunu had a discussion on 12 December 2024 with the respondent’s union delegate who “confirmed to me her belief that the redundancy was genuine and shortage of work meant everyone would be going back to casual employment”.
(f)Mr Taumaunu telephoned Mr Miller on 13 December 2024 who confirmed that Mr Taumaunu’s position was being made redundant but that he could remain employed as a casual employee if he wished.
(g)Mr Taumaunu emailed Mr Miller on 13 December 2024 choosing the option to be made redundant.
The respondent contends that, in addition to the above matters, Mr Miller’s evidence during the first instance proceedings was that a definite decision was not made until December 2024. It says that, in these circumstances, the Commissioner’s ultimate conclusion that the respondent had complied with the consultation provisions of the Agreement was not erroneous. However, the decision does not record that the Commissioner made any findings of fact as to the date the respondent made a definite decision to implement the redundancies. Nor do we consider Mr Miller’s oral evidence to be determinative of this matter in any event.
Appeal ground 2(a) concerns Mr Taumaunu’s contention that the respondent failed to adhere to its consultation obligations under clause 10 of the Agreement. As earlier stated, the Commissioner relevantly summarised the obligations under clause 10 of the Agreement as two-fold:
[35] …The requirements of clause 10 are twofold. Firstly, United are required to consult with the Union and secondly, they are required to discuss the change with the relevant employee. Clause 10.5 further provides that they are to provide employees with written advice regarding the nature of the change proposed. Information about the expected effects of the change on the employees, and any other matters likely to affect the employees.
For the reasons that follow, we do not consider that the above provides an accurate summary of the respondent’s obligations under the Agreement.
Clause 10.3 requires the respondent to notify affected employees and the union if it is considering making a decision to introduce major change, and prior to such a decision being made. The evidence discloses that Mr Taumaunu was informed by text message on 19 November 2024 that effective “today,” the respondent was unable to maintain all of its full-time positions and accordingly, “we are implementing options for affected employees”. We do not consider this correspondence is capable of being construed as prior notification that the respondent was considering making a decision, as the respondent contends. In our view, it constitutes notification of a decision that had already been made, and which was being implemented from “today”.
Prior to implementation, the respondent is required by clause 10.4 of the Agreement to discuss the introduction of the change, its likely effect on employees, and measures to avert or mitigate its adverse effects on the employees. The discussion between Mr Taumaunu and Mr Miller on 19 November 2024 followed the issuance of the text message and did not address any of the matters contemplated by clause 10.4 in any event. The evidence demonstrates that Mr Miller advised Mr Taumaunu that “it was nothing to worry about”. There is no other evidence of discussions between the respondent and Mr Taumaunu that we consider can be relied upon in compliance with clause 10.4.
Clause 10.5 of the Agreement requires the respondent to provide the employees, the union and/or their nominated representatives written information about the change, its expected effects and any other matters likely to affect the employees. It is not in dispute that no further information was provided to Mr Taumaunu in writing about this matter until Mr Miller sent the 10 December 2024 email. That email replicated the content he had already provided in the 19 November 2024 text message. While the Commissioner found that both communications included information regarding the impact on employees, no findings were made as to whether the employees received, in writing, all relevant information about the change, and any other matters likely to affect the employees as required by clauses 10.5(a) and (c). We consider that the only available conclusion on the evidence is that Mr Taumaunu was not provided with information about these matters in writing as required by clause 10.5.
The respondent submits that the Commission should also give weight to Mr Miller’s telephone call with Mr Taumaunu on 13 December 2024, which preceded Mr Taumaunu’s decision to take a redundancy. We accept, on the evidence, that the parties spoke on this date. However, the evidence indicates that the discussion was instigated by Mr Taumaunu and was limited to Mr Miller confirming orally with Mr Taumaunu – for the first time – that his position was being made redundant and the casual option was available to him. We do not accept that this single telephone conversation constitutes meaningful consultation prior to implementation of the decision as clause 10 of the Agreement requires. This would be the case even if the respondent had persuaded us that it did not make a definite decision until an unidentified date in December 2024.
It follows that we consider that the Commissioner erred when she concluded in the decision that the respondent complied with the consultation provisions of the Agreement. The evidence before the Commission does not support a finding that clauses 10.3, 10.4 and 10.5 of the Agreement were satisfied, insofar as they impose obligations upon the respondent to consult with affected employees, and relevantly to the appeal, Mr Taumaunu. Accordingly, we uphold appeal ground 2(a). However, we are not similarly satisfied that the Commissioner erred when she found that the Respondent met its obligations under the Agreement to consult with the union prior to making Mr Taumaunu’s position redundant. There was an evidentiary foundation for this finding, having regard to Mr Miller’s uncontested evidence and noting the union’s assistance with the wording used in the 19 November 2024 text message. It follows that we reject appeal ground 2(b).
The effect of our conclusion is that it was not open to the Commissioner on the evidence to reach a state of satisfaction that Mr Taumaunu’s dismissal was a genuine redundancy within the meaning of the Act. The appeal must be allowed and the order dismissing Mr Taumaunu’s unfair dismissal application quashed.
Conclusion and disposition
For the reasons given, permission to appeal should be granted in respect of appeal grounds 1 and 2, the appeal allowed in respect of appeal ground 2(a), and the decision of the Commissioner quashed. Mr Taumaunu’s application for an unfair dismissal remedy under s 394 of the Act should be remitted to the Commissioner for further programming in light of our conclusion that his dismissal was not a case of genuine redundancy within the meaning of s 389 of the Act.
The Full Bench makes the following orders:
(a)Permission to appeal is granted in respect of appeal grounds 1 and 2;
(b)The appeal is allowed in respect of appeal ground 2(a);
(c)The decision of the Commissioner in [2025] FWC 1365 in matter number U2025/13 is quashed; and
(d)The application in matter number U2025/13 is remitted to the Commissioner for further programming.
VICE PRESIDENT
Appearances:
K Taumaunu appeared on his own behalf.
A Macpherson, solicitor, of Crawford de Carné Lawyers, for the Respondent.
Hearing details:
Melbourne:
17 July 2025.
Final written submissions:
22 July 2025
[1] Taumaunu v United Personnel Traffic Pty Ltd[2025] FWC 1365; Print PR787373.
[2] Decision at [35].
[3] Decision at [38]-[40].
[4] Decision at [43].
[5] Decision at [43].
[6] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].
[7] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] (Buchanan J); Workpac Pty Ltd v Bambach [2012] FWAFC 3206; (2012) 220 IR 313 at [14]; Barwon Health – Geelong Hospital v Colson [2013] FWCFB 4515; (2013) 233 IR 364 at [6]; Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [36].
[8] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).
[9] O’Sullivan v Farrer (1989) 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46]; Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [102] (Bromberg J).
[10] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v McAuliffe [2014] FWCFB 1663 at [28].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 at [27].
[12] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].
[13] Directions dated 17 July 2025; Respondent’s further submissions dated 22 July 2025.
[14] See Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [128]-[129] (Steward J).
[15] Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [30] (Gageler CJ, Gordon and Beech-Jones JJ).
[16] Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 (Ryan J).
[17] Dibb v Federal Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at [40]-[42] (Spender, Dowsett and Allsop JJ); Ulan Coal Mines Ltd v Howarth[2010] FWAFB 3488; (2010) 196 IR 32 at [17]-[18]; CMP Manufacturing Pty Ltd v Barbieri [2018] FCA 622 at [12] (Bromberg J); Baya Casal v Deputy Commissioner of Taxation [2025] FCA 87 at [84]-[85] (McEvoy J).
[18] Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [32]-[40] (Gageler CJ, Gordon and Beech-Jones JJ).
[19] Decision at [7]-[13].
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