Ms Julie-Anne Giffin v Downer EDI Mining Pty Ltd

[2013] FWC 8020

[2013] FWC 8020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Justin Fisher; Mr Tim Bartlett; Mr Jason Evans; Mr Adam Kirton; Mr James Davis; Mr Robert Shaw; Ms Julie-Anne Giffin
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788, U2013/1793)

COMMISSIONER CAMBRIDGE SYDNEY, 22 NOVEMBER 2013

Applications for relief from unfair dismissal - jurisdictional objection - s.396 of Fair Work Act 2009 - whether dismissals were cases of genuine redundancy - s.389 meaning of genuine redundancy - elements which constitute genuine redundancy - redeployment circumstance of each applicant considered separately.

[1] On 31 May 2013, the Construction, Forestry, Mining & Energy Union (CFMEU), made applications for unfair dismissal remedy on behalf of inter alia, seven individuals who had been employed by Downer EDI Mining (Downer Mining) at the Boggabri coal mine.

[2] The applications were made under s.394 of the Fair Work Act 2009 (the Act), and numbered U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788, U2013/1793, collectively referred to as “the applications”.

[3] The applications each nominated the date that the respective dismissal took effect to be 17 May 2013. Therefore on their face, each application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. One of the applications, U2013/1784 made by Jason Evans, was challenged by Downer Mining to have been made beyond the 21 day time limit prescribed by subsection 394 (2) of the Act.

[4] All of the applications were the subject of jurisdictional challenge made by the respondent Downer Mining, upon the assertion that each of the applicants’ dismissals was a case of genuine redundancy. Consequently, Downer Mining advanced jurisdictional challenge to the applications relying upon the requirements of subsection 396(d) of the Act which stipulates that the Fair Work Commission (the Commission) must decide whether the dismissal was a case of genuine redundancy before any consideration of the merits of the applications.

[5] The jurisdictional challenge to the applications, which in all matters involved the assertion that the dismissal was a case of genuine redundancy, and additionally in matter U2013/1784 (Mr Evans), included challenge that the application was not made within time, was the subject of a Hearing conducted over three days, 18 and 19 September 2013 in Tamworth and in Sydney on 22 October 2013.

[6] At the Hearing to deal with the jurisdictional objections, Mr J Goos, Employee Relations Manager, appeared for Downer Mining and called Mr J Hill, Regional Manager, to give evidence in support of the jurisdictional objections. Mr K Endacott from the CFMEU appeared for the applicants and called each of the applicants and Mr J Drayton, CFMEU District Vice President, to give evidence in opposition to the jurisdictional challenges made by Downer Mining.

Background

[7] Downer Mining operates the Boggabri coal mine under contract from the mine owner, Idemitsu Australia Resources Pty Ltd (IAR). IAR is an Australian subsidiary of the Japanese Company, Idemitsu Kosan Co., Ltd.

[8] Downer Mining is an operational division of the Downer Group, Downer EDI Limited (Downer EDI). Downer EDI provides engineering and infrastructure management services to customers operating in market sectors including Minerals & Metals, Oil & Gas, Power, Road & Rail Infrastructure, Telecommunications and Water. Downer EDI is a publicly listed Australian Company which employs more than 20,000 people in Australia, New Zealand and the Asia Pacific region. 

[9] On 15 March 2013, Downer Mining received formal instruction from IAR to alter the annual mine plan which governs the operation of the Boggabri coal mine. The instruction from IAR essentially compelled Downer Mining to reduce the operational activity and output from the Boggabri mine. The instruction was made in accordance with the contractual obligations that enable Downer Mining to operate the mine on behalf of IAR and included a direction to Downer Mining to alter the shift rostering arrangements that apply to employees of Downer Mining working at the Boggabri mine. The instruction from IAR to reduce operational activity and output appeared to have been caused by factors such as railway capacity constraints and international currency exchange rates.

[10] Downer Mining assessed that the instruction to reduce mine output and alter shift rostering arrangements would impact on manning levels such that a reduction of approximately 30% of the workforce would result. These assessments translated into a determination that 66 operator positions and 40 maintenance positions would be declared redundant and require the termination of the employment of a total of 106 individuals.

[11] Downer Mining implemented a programme aimed at providing information to its employees engaged at the Boggabri mine and their Union, the CFMEU, about the anticipated redundancies arising from the instruction from IAR to reduce mine output and alter shift rostering. This programme included meetings and discussions with CFMEU officials and presentations to employees at Pre-Start Information Sessions (PSIs). As a result of these consultations, certain changes to the proposed shift rostering were made and Downer Mining agreed to a request from the CFMEU to invite expressions of interest for voluntary redundancies without obligation that any such expression would be granted.

[12] In due course, a selection criterion for determining those individuals who would be made redundant was adopted and applied. Subsequently, the relevant employees were advised that they had been selected for redundancy and some steps were taken to identify whether there were reasonable redeployment opportunities which might be available.

[13] At the direction of IAR, all employees who had been selected for redundancy were required to work out their notice periods. In addition, Downer Mining provided access to various employee assistance programmes and counselling services.

[14] Each of the applicants received a letter dated either 18 or 19 April 2013 from Downer Mining, which advised of that individual’s selection for redundancy which would be effective on 17 May 2013 (the redundancy letters). The redundancy letters were broadly in the same terms as evidenced by that sent to Mr Davis 1. The termination of employment of each of the applicants other than Mr Evans, occurred on 17 May 2013, in accordance with the terms advised in the redundancy letters.

[15] On 12 July 2013, IAR issued another instruction to Downer Mining requiring an increase in output from the Boggabri mine and altering shift rostering arrangements accordingly. This instruction essentially reversed the previous instruction of 15 March which had created the operational circumstances that gave rise to the redundancies of inter alia, the applicants.

[16] At the time of Hearing, a number of those employees who had been made redundant as a result of the 15 March instruction from IAR had been re-employed by Downer Mining as it required additional labour to comply with the 12 July IAR instruction to increase output from the mine. Although most of the applicants had applied for such re-employment, none had been successful.

The Jurisdictional Objections

[17] Mr Goos who appeared for Downer Mining made oral submissions in support of written material that he had filed. Mr Goos submitted that each of the applicants did not have standing to make an unfair dismissal claim because each dismissal was a case of genuine redundancy.

[18] Mr Goos referred to s.389 of the Act which provided a definition for the meaning of genuine redundancy. Mr Goos submitted that there were clear operational requirements placed upon the respondent by its client via the instruction given on 15 March 2013. Mr Goos mentioned that the staff levels at the mine had been established upon an anticipated increase in production rather than the decrease that was instructed by the client. Consequently according to the submissions of Mr Goos, the respondent no longer required the job performed by any of the applicants as they were part of the 106 employees made redundant as a consequence of the instruction given by the respondent's client to reduce the output from the mine.

[19] Mr Goos made further submissions in respect of the consultation obligations which he said had been met by the respondent. In this regard Mr Goos referred to the relevant clauses of the Downer EDI Mining Boggabri Enterprise Agreement 2010 (the Agreement). Mr Goos submitted that the respondent had demonstrated that it had consulted with its employees and their representatives who were affected by the major workplace change caused by the instruction from the respondent's client.

[20] In respect to the question of consultation, Mr Goos submitted that the fact that particular roster changes were altered and that qualified voluntary redundancy was provided at the request of the CFMEU, demonstrated that the respondent had made practical changes as a consequence of the consultation process that it had adopted. This, it was submitted, reflected that the consultation obligations of the Agreement had been satisfied. Mr Goos acknowledged that some aspects of the consultation process could have been better implemented but there were no concerns raised by the CFMEU about the consultation process at the time.

[21] In further submissions, Mr Goos addressed the question of whether subsection 389(2) of the Act which was concerned with redeployment had been satisfied. Mr Goos submitted that any redeployment of any of the applicants was not reasonable in the circumstances. Further, he said that the respondent had demonstrated that there were extremely limited redeployment opportunities available either within the business of the respondent or an associated entity of the respondent.

[22] Mr Goos also made submissions about the particular application for unfair dismissal remedy made by Mr Evans (U2013/1784). Mr Goos submitted that in the case of Mr Evans, an additional jurisdictional objection had been established.

[23] The employment of Mr Evans came to an end on 1 May 2013, when during the notice period for anticipated termination on 17 May, Mr Evans provided Downer Mining with a handwritten letter 2 advising that he wished to leave because he had secured employment with another company by the name of Underground Constructions. Consequently, Mr Goos submitted that the application for unfair dismissal remedy made by Mr Evans involved a date of termination of 1 May 2013 and therefore it had not been lodged within the time prescribed by subsection 394(2) of the Act.

[24] In respect to Mr Evans’ application, Mr Goos submitted that it had been made out of time and there had been no evidence to provide any mitigating circumstances to enable the out of time application to be accepted by the Commission.

[25] Mr Goos made further submissions which stressed that any complaint about the process for selection of individual redundancy was not a factor relevant to any assessment as to whether the dismissal was a case of genuine redundancy. On this point Mr Goos referred to item 1553 of the Explanatory Memorandum to the Fair Work Bill 2008 and to the Decision of Simpson C in Klavs v Prestige Painters 3 (Klavs).

[26] The submissions made by Mr Goos also addressed the issue of whether foreign workers engaged via a process referred to as 457 Visa holders should have been selected for redundancy before other workers. Mr Goos submitted that it would have been unlawful for the respondent to include the 457 Visa as a factor for redundancy selection because to do so would have been discriminatory and provide preference for workers who are Australian citizens or residents. Mr Goos noted that two employees engaged on 457 Visas were selected for redundancy and six others were not and this demonstrated that the selection process was clear, transparent and fair.

[27] In summary, Mr Goos submitted that each of the applicants’ dismissals was a case of genuine redundancy because each of the relevant provisions of s.389 of the Act had been satisfied. Specifically Mr Goos submitted that each of the jobs of the applicants no longer existed because of operational changes, and the respondent had complied with its consultation requirements, and any redeployment options were unreasonable in the circumstances. Further, Mr Goos said that the application in the case of Mr Evans was also out of time. Consequently, Mr Goos said that the applications did not have jurisdiction and therefore each of the applications for relief from unfair dismissal should be dismissed.

The Case Against the Jurisdictional Objections

[28] Mr Endacott from the CFMEU appeared for the applicants and made extensive verbal submissions in elaboration of a written outline of submissions filed on behalf of each of the applicants. Mr Endacott submitted that there was an onus on the respondent to prove the jurisdictional objection that it had raised.

[29] Mr Endacott submitted that the job that each of the applicants performed continued to be required to be performed and therefore each was not a case of genuine redundancy. In support of this submission, Mr Endacott undertook a detailed analysis of the mine production figures during a period which traversed the time at which each of the applicants were made redundant. Mr Endacott said that the evidence revealed that particularly in the case of maintenance personnel, the mine was understaffed and the redundancies increased the use of rostered overtime in order to maintain output which at no stage actually met the mine plan production targets.

[30] Mr Endacott further submitted that the respondent had reduced personnel by 106 positions which represented approximately a 35% reduction of the total workforce. However the reduction in planned mine output from 5.5 to 4.5 million tonnes per annum represented only an 18% decrease. According to Mr Endacott, there was an important inconsistency revealed when any need to reduce production by 18% led to a personnel reduction of 35%. This inconsistency supported the proposition advanced by Mr Endacott that there was a significant requirement for work previously performed by the redundant employees to continue to be performed. Therefore according to Mr Endacott, the redundancies did not satisfy that aspect of the meaning of genuine redundancy relating to changes to operational requirements causing the jobs of the applicants to no longer be performed.

[31] Mr Endacott made further submissions which were critical of the evidence provided by Downer Mining regarding the operational requirements which were said to support the genuineness of the redundancies. Mr Endacott was critical of the evidence provided by Mr Hill who was a human resources practitioner, and the absence of any evidence from an appropriately qualified operational manager. Mr Endacott submitted that the onus was on Downer Mining to adduce evidence from someone with operational knowledge to demonstrate that the instruction that had been given by the client actually impacted upon the production levels required by the mine plan. In the absence of this evidence, Mr Endacott submitted that Downer Mining had not met the onus regarding the change in operational requirements which led to the applicants’ jobs no longer being required to be performed.

[32] The genuineness of the redundancies of the applicants was also challenged by Mr Endacott on the basis that employees at the mine were required to work public holidays and significant amounts of regular rostered overtime. Mr Endacott submitted that particularly in the case of maintenance employees, the evidence established that there were an insufficient number of employees to meet the work requirements and this led to the working of additional amounts of overtime.

[33] Mr Endacott further submitted that the operational reasons relied upon by Downer Mining had not been properly established and the fallacy of the asserted basis for the redundancies was reflected by evidence that within a month or two after the redundancies, the employer commenced re-employing about 70 employees.

[34] In respect to the consultation requirements contained in the Agreement, Mr Endacott submitted that the evidence had established that Downer Mining had implemented a process which had fallen short of the relevant requirements. In particular, Mr Endacott submitted that the words “discuss and detail” which were contained in the consultation clause of the Agreement, were relevant to any analysis of whether Downer Mining had complied with the consultation obligations. In this regard it was submitted that the evidence did not establish that Downer Mining had discussed and detailed the changes which involved the redundancies of the applicants.

[35] Mr Endacott made submissions which were highly critical of the consultation process which had been implemented by Downer Mining. Mr Endacott mentioned that some of the maintenance employees had not been included in meetings which were held to inform employees about the anticipated redundancy. Further, Mr Endacott said that the PSI meetings were held in overcrowded rooms which in some instances meant that some of those in attendance would have had great difficulty seeing or hearing the presentations that were being made. In addition he said that the process did not invite input from the employees and as such did not represent meaningful consultation.

[36] According to the submissions of Mr Endacott,the consultation provided particularly to maintenance employees was entirely unsatisfactory. Mr Endacott said that various maintenance employees gave evidence that they had been advised by immediate supervisors that because the maintenance area was short staffed they would be unaffected by the redundancies that were being contemplated by Downer Mining. Mr Endacott referred to various Authorities which he said established that consultation of the nature that had been undertaken by Downer Mining had to be meaningful if it was to comply with the obligations that arose from the consultation provisions of the Agreement.

[37] Mr Endacott also referred to a number of Decisions of this Commission and its predecessor manifestations, which dealt with the issue of any redeployment which would have been reasonable in the circumstances. Mr Endacott stressed that Downer Mining was part of a very large group of Companies and the evidence which had been provided by the applicants demonstrated that there had not been sufficient exploration of the redeployment opportunities that may have existed for the applicants.

[38] Further, Mr Endacott referred to a letter that Downer Mining had provided to the CFMEU on 15 March 2013, which sought to obtain approval from the Department of Immigration and Citizenship to access a labour market agreement to fill vacant positions which it said it was unable to fill from the local labour market. Mr Endacott made submissions which focused upon the inconsistency which arose between the letter to the Department of Immigration and Citizenship which asserted that Downer Mining had difficulties in filling vacant positions, while in this case it asserted that there were no redeployment opportunities for the applicants.

[39] Mr Endacott submitted that each of the applicants received a letter which contained the words: “All reasonable redeployment opportunities with Downer have been considered and discussed with you”. However the evidence established that despite the wording of the letters such discussion did not actually occur. Mr Endacott said that despite some “self-imposed limitations on some of the individuals” there had not been any proper exploration of redeployment opportunities for the applicants.

[40] Mr Endacott made further submissions which concentrated upon redeployment opportunities for maintenance employees in respect of positions held by employees engaged via the 457 Visa arrangements. Mr Endacott submitted that the arrangements under which the 457 Visa employees were engaged, were of a temporary nature and that it would have been reasonable for other employees, such as the applicants, to be given redeployment into the positions occupied by the temporary 457 Visa employees.

[41] Further, Mr Endacott submitted that the proposition for redeployment of one or more of the applicants into positions held by the 457 Visa holder employees was supported by the statutory framework of the Act. In this regard, Mr Endacott referred to the objects of the Act which included the promotion of national economic prosperity and social inclusion for all Australians and he said that this object made a distinction between persons who were not Australians such as those employees engaged under the 457 Visa arrangements and other employees. Consequently, according to the submissions made by Mr Endacott, there were redeployment opportunities in respect to the positions held by 457 Visa employees which were not properly considered and which would have been suitable for some of the applicants.

[42] In summary, Mr Endacott submitted that Downer Mining had failed to establish the basis for its jurisdictional objections to the applications. According to Mr Endacott, Downer Mining had not provided evidence to establish that the meaning of genuine redundancy had been satisfied in respect to each of the applicants. In particular it had not properly established the operational requirements which meant that the applicants’ jobs were no longer required, nor had it consulted in accordance with the Agreement obligations, nor had it established that it would not have been reasonable for the applicants to have been redeployed. Consequently, Mr Endacott urged the Commission to dismiss the jurisdictional objections raised by the respondent employer.

Consideration

[43] This Decision has involved the determination of jurisdictional objections which were taken by the employer, Downer Mining, who is the respondent to inter alia, seven applications for unfair dismissal remedy made pursuant to s.394 of the Act.

[44] Relevantly, s.396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any application made under s.394. In this instance, the jurisdictional objections arise in all applications from the provisions of subsection 396 (d) of the Act, and in one case, (U2013/1784) an additional objection has been advanced under subsection 396 (a). The particular provisions of s.396 of the Act are:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

...

(d) whether the dismissal was a case of genuine redundancy.”

[45] Consideration has been approached by initial examination of the jurisdictional objections raised in respect of each application regarding subsection 396 (d) of the Act (the genuine redundancy question). As a matter of logic and efficiency, the additional jurisdictional objection made in respect of one application under subsection 396 (a), (the out of time question), would only require consideration in the event that the jurisdictional objection common to all applications, the genuine redundancy question, was not upheld in that application which also involved the out of time question.

The Genuine Redundancy Question

[46] It would seem that a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy. This appears to be the clear corollary of subsection 385 (d) of the Act:

“385 What is an unfair dismissal

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

(a) ... and

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

[47] Section 389 of the Act provides for a meaning of genuine redundancy:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[48] An examination of the provisions of s.389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[49] For convenience I have abbreviated the three elements identified within s.389. The first affirmative element which is extracted from subsection 389 (1) (a) has been described as “job lost due to operational requirements”; the second affirmative element extracted from subsection 389 (1) (b) has been called “consultation obligations”; and the third negatory element found in subsection 389 (2) is abbreviated as “reasonable redeployment”.

[50] Consequently, my approach to consideration of the question of whether a dismissal was a case of genuine redundancy has involved examination of the three separate elements contained in s.389 of the Act, such that, each of these three separate elements must, in combination, be satisfied in order to make any finding of genuine redundancy. This means that the two affirmative elements contained in subsection (1) must be established and the negatory element found in subsection (2) must not be present in order to make a finding that a particular dismissal was a case of genuine redundancy.

Job Lost Due To Operational Requirements

[51] In this instance, the evidence has established that the applicants were seven individuals who were part of a total of 106 employees dismissed on the basis of alleged redundancy. The decision by Downer Mining to dismiss 106 employees was directly connected with the instruction from its client, IAR, as conveyed in the letter of 15 March 2013 4.

[52] There was no dispute that 106 employees were dismissed and that at least initially, the jobs that were performed by those employees were lost, that is, the actual number of employees engaged at the mine decreased by 106. The CFMEU adduced considerable evidence which sought to demonstrate that the amount of work which was required to be performed at the mine did not reduce commensurate with the loss of 106 jobs. Essentially this evidence successfully challenged some aspects of the decision-making processes adopted by Downer Mining and which led to the determination that 106 employees would be made redundant as a consequence of the instruction from IAR of 15 March 2013.

[53] The evidence established that particularly in the case of maintenance employees, some of the work that had been performed by those who had been made redundant was redistributed amongst the remaining employees. However the redistribution of work amongst retained employees via increased overtime or other measures does not alter the fact that a job as opposed to the work of an individual was lost.

[54] Although the decision made by Downer Mining to reduce the jobs at the mine by 106 may have been inappropriate and even excessive, the fundamental aspect that the jobs of 106 employees, including the applicants, were lost because of changes in the operational requirements of the employer's enterprise was inescapable. In other words, even if the decision to make the applicants redundant was established to have been a bad one, even perhaps a foolish decision, such imprudence does not disturb the fact that the job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

[55] Subsection 389 (1) (b) of the Act does not establish any requirement that when an employer decides that it no longer requires a person's job to be performed by anyone, it must make that decision based on sound and well defensible management practices. Therefore, notwithstanding the validity or otherwise of the challenges that the CFMEU made to the decision to reduce jobs by a total of 106, there can be no finding made, other than the jobs of the applicants were no longer required to be performed by anyone because of the changes in the operational requirements which arose from the instruction given by IAR on 15 March 2013.

[56] Consequently, in respect of all of the applicants, the first element of s.389 of the Act has been established, that is, the employer no longer required any of the applicants’ jobs to be performed by anyone because of changes in the operational requirements of the employer's enterprise. The basis upon which this finding is made has involved circumstances which were common to each of the applicants.

Consultation Obligations

[57] The second element contained in s.389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. The relevant consultation obligations are contained in clauses 2.4.1 and 6.4 of the Downer EDI Mining Boggabri Enterprise Agreement 2010 (the Agreement). These clause are in the following terms:

“2.4 Redundancy

2.4.1 Consultation

The Company will consult with Employees and their representatives regarding any proposed redundancies before a final decision is made, however the Company reserves the right to implement redundancies based on the needs of the Operation. In this event the Company will discuss and detail the proposed processes that will be introduced to determine those redundancies with the affected parties.

...

6.4 Consultation

As soon as practicable after making a definite decision to introduce a major change to production, program, organisation, structure or technology that is likely to have a significant effect on employees, the Company must consult with affected employees about those major workplace changes.

The affected employees may be represented for the purposes of that consultation.

For the purposes of this clause, the Company is not required to disclose confidential or commercially sensitive information relevant employees.”

[58] The evidence provided by Mr Hill on behalf of Downer Mining, included details of the consultation process that was implemented shortly after the instruction was given by IAR on 15 March. Downer Mining representatives met with various representatives of the CFMEU on or about 25 March 2013, and discussions commenced about the anticipated redundancies that would occur as a consequence of the instruction given by IAR.

[59] Shortly after the initial meeting between representatives of Downer Mining and the CFMEU, a series of on-site information meetings (PSIs) and other communications including a PowerPoint presentation, were conducted as part of the consultation process regarding the anticipated redundancies. During the period of the consultation process, a number of matters relevant to the redundancies were altered or implemented in response to suggestions made by the CFMEU. As one example, in response to a request from the CFMEU, Downer Mining agreed to implement a process for employees to request voluntary redundancy.

[60] The evidence provided by some of the applicants revealed some deficiencies in particular aspects of the consultation process. In particular, the material provided in the PowerPoint presentations omitted reference to anticipated redundancy for maintenance employees and specifically only mentioned anticipated redundancies for operators. There was further evidence that maintenance management staff erroneously suggested to maintenance employees that the anticipated redundancies would be confined to operator positions. There was also evidence that at least one of the applicants who was a maintenance employee, had not been provided with any advice via the PSI meetings.

[61] In any consultation process involving several hundred employees working on various shift patterns, there is likely to be some instances where particular employees may not have received the desired or intended level of communication and consultation. The practical difficulties associated with a process of this nature must be balanced against evidence of particular individuals who, for a variety of reasons, did not receive the level of communication and consultation that was clearly intended.

[62] In this instance, the most regrettable deficiency that was identified in the consultation process related specifically to the inadequate and perhaps even misleading advice provided to maintenance employees. An examination of the totality of the evidence regarding important omissions in respect to anticipated redundancies applying to maintenance employees, has been a most troubling aspect for consideration.

[63] It has been difficult to balance the deficiencies evident in the consultation process particularly as concerned maintenance employees, against the active encouragement by Downer Mining for extensive involvement of the CFMEU including the adoption of measures requested by the Union. The evidence established that in some instances, the proposed redundancies had been discussed and detailed as clause 2.4.1 of the Agreement would envisage, and in other cases particular employees had very little, if any, consultation.

[64] Ultimately, although there were deficiencies in some aspects of the consultation process implemented by Downer Mining, the terms of subsection 389 (1) (b) are directed to a determination as to whether there was compliance with Award or Agreement obligations, as opposed to the particular standard of success achieved by the actions involving compliance. On balance, I have formed the view that Downer Mining acted in good faith and with every intention to comply with the consultation obligations arising from the provisions of the Agreement. Consequently, I find that the consultation obligations have been met and this element of s.389 has been satisfied in respect to the circumstances of all employees including the applicants.

Reasonable Redeployment

[65] The third element of s.389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy which possessed the elements of subsection 389 (1), to be not a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[66] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees because the reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis.

[67] Consequently, the consideration of the reasonable redeployment element of s.389 of the Act has involved an examination of the actions which Downer Mining undertook in the pursuit of redeployment, both in general application and for individual employees, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by each of the applicants.

[68] The significance attached to redeployment as an alternative to any dismissal based upon alleged redundancy is plain from the terms of subsection 389 (2) of the Act. Further, it would seem that in broad terms, redeployment would usually involve common benefit for both the employer and employee. Therefore, despite any legislative requirements, it would seem to be just good business management to properly exhaust all reasonable redeployment options before implementing any dismissal for redundancy. Of course it is conceivable that the pursuit of redeployment may be influenced by other factors and redundancy may represent a convenient means to dismiss a particular “undesirable” person as part of a group of redundancies. An examination of the pursuit of redeployment on a case by case basis may expose conduct on the part of either the employer or an employee which may not be genuine and thus provide basis to determine whether, in all the circumstances, it would have been reasonable to redeploy.

[69] Each of the applicants received a letter of dismissal which included the words: “All reasonable redeployment opportunities with Downer EDI have been considered and discussed with you.” The inclusion of these words in the letters of dismissal was little more than a hollow platitude offered to provide the appearance that genuine, earnest exploration of redeployment had been undertaken.The evidence has revealed that in many instances, there was simply no discussion at all with various individuals about redeployment.

[70] There was also a lack of clear or comprehensive communication with employees about potential redeployment positions which existed throughout the Downer EDI group of Companies. Many of the applicants were provided with a list of Group Wide Current Vacancies for the first time after they had been dismissed. The provision of the Group Wide Current Vacancy list whilst still in employment would have been fundamental to the proper exploration of reasonable redeployment.

[71] Further, in some instances where vacancy lists were provided, the prospect for any redeployment into these positions was conveyed on the basis that “... all positions listed outside of Downer Mining (ie. Downer Australia, Downer Rail etc.) are to be treated as a whole new position and applications are only accepted online. They are not considered internal transfers.” 5 Further, at least one of the applicants gave unchallenged evidence that the Mine Manager, Mr De Nysschen, stated that redeployment would only be considered within Downer Mining and not across other operational divisions such as Downer Rail.6

[72] The approach to redeployment adopted by Downer Mining was sadly inadequate and did not satisfy, in general terms, the requirements which have been established to arise from subsection 389 (2) of the Act. In this regard, it is relevant to repeat the following extracts from the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors:

“[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.” 7 [emphasis added]

[73] The conduct of Downer Mining in respect to the pursuit of reasonable redeployment did not, by way of general application, satisfy the requirements that are necessary to avoid the negatory impact of subsection 389 (2) of the Act. However, subsection 389(2) includes reference to all the circumstances. Consideration of whether redeployment was reasonable can not be confined to the actions or inactions of the employer. For example, an employer could fail to even contemplate any redeployment, but if it was established that there were no positions to which any employee could have been redeployed, how could it have been reasonable to redeploy?

[74] Therefore there is a further requirement to examine the circumstances of each of the applicants in order to determine whether, despite the inadequate approach to redeployment adopted by Downer Mining, some other factor may have meant that redeployment of a particular individual would not have been reasonable. The particular circumstance of each of the applicants has required examination on a case by case basis and if evidence has emerged that some factor operated to make redeployment unreasonable then subsection 389 (2) of the Act would be satisfied, its negatory impact would be avoided and a case of genuine redundancy would be established.

[75] The prospects for redeployment across the Downer EDI group of Companies for someone with established skills and competencies in either operational or maintenance fields would, in the absence of evidence of some significant, broad economic contraction, appear prima facie, to be reasonable. This proposition was supported by evidence that Downer EDI had sought to access what is known as the 457 Visa scheme as a means to supplement its unsatisfied local labour demand in both specialist and non-specialised operational and maintenance positions.

[76] All of the applicants possessed a broad range of skills and competencies in operational or maintenance functions and in some cases, both operational and maintenance qualifications and competencies had been obtained. Obviously there were differing levels of proficiency that could be assessed between the various applicants. However, in general terms, there was no indication that any one of the applicants did not possess suitable skills and competencies to satisfactorily perform the work comprehended by one or more of the numerous positions which were contained in the list of Group Wide Current Vacancies.

[77] The securing of reasonable redeployment involves the genuine and earnest approach of both employer and employee. As stated earlier, the approach to redeployment adopted by Downer Mining was inadequate. I have examined the evidence given by each of the applicants in order to ascertain whether each individual’s approach to redeployment was genuine and earnest, such that there was a denial of reasonable redeployment. Particular importance has been attached to any evidence that an individual did not take active steps in the pursuit of redeployment or that an individual imposed particular conditions or restrictions upon the terms of any redeployed position.

[78] Each of the applicants gave open and truthful evidence as a witness. It was clear that each of the applicants was understandably aggrieved by what they believed to be their unfair dismissal. I have carefully examined the evidence given by each of the applicants. Ultimately I have formed a view on a case by case assessment as to whether a particular individual genuinely pursued redeployment or alternatively, if a particular person acted languidly or imposed conditions or restrictions which meant that redeployment of that individual would not have been reasonable.

[79] In the order that each of the applicants gave evidence as a witness, I provide a brief summary of the basis upon which I have formed a view about the approach to redeployment taken by each applicant.

[80] Mr Davis was clearly motivated in his pursuit of redeployment, to the point that he was “...sort of desperate ... [for] anything else available like anywhere...” 8. Mr Fisher was similarly “...getting pretty desperate... [and] would have went to any of them.”9 Conversely Mr Bartlett was “...only interested in something in New South Wales,”10 and “...wasn’t prepared to move... [as he had] ...lived in Gunnedah 46 years.”11 Ms Giffin declined an offer to speak to HR recruitment people about redeployment.12 Mr Shaw was prepared to travel for work in respect to any redeployment.13 However, Mr Evans had a clear preference to stay local14 as did Mr Kirton.15

[81] The corollary of the case by case assessment of the applicants’ particular approach to the pursuit of redeployment has resulted in findings that it would have been reasonable for Downer Mining to have redeployed Mr Fisher (U2013/1781), Mr Davis (U2013/1787) and Mr Shaw (U2013/1788). However I further find that in all the circumstances, it would not have been reasonable to redeploy Mr Bartlett (U2013/1782), or Mr Evans (U2013/1784), or Mr Kirton (U2013/1786) or Ms Giffin (U2013/1793).

[82] Therefore the negatory element contained in subsection 389(2) of the Act has operated in respect to the applications made by Fisher, Davis and Shaw and the dismissals of these individuals do not satisfy the meaning of genuine redundancy as contained in s.389 of the Act. There is no satisfaction of the negatory element of subsection 389(2) in respect to the applications made by Bartlett, Evans, Kirton and Giffin.

The 457 Visa Issue

[83] The CFMEU also argued that as a “subset” of the notion of reasonable redeployment, those applicants who had similar maintenance qualifications, skills and competencies to those of the 457 Visa holder employees who had not been made redundant, should have been redeployed into the positions occupied by the 457 Visa holders. This proposition is misconceived because it confuses redeployment with replacement. Redeployment requires there to be a vacant position to move to, rather than to displace the existing occupant of a position.

[84] Therefore the 457 Visa argument advanced by the CFMEU essentially introduced challenge to the selection process and sought to require that 457 Visa holder employees be selected to be redundant because they were not Australian nationals. As was identified in the Decision of Simpson C in Klavs, any argument about the selection of redundant individuals is not a matter for inclusion in the determination of genuine redundancy.

The Out of Time Application

[85] In view of the findings made about the absence of any operation of subsection 389(2) of the Act in the application made by Mr Evans, it is strictly unnecessary to determine the out of time aspect of that application. However, for completeness and if I am wrong in respect to the question of genuine redundancy, I find that there was no basis upon which to establish that exceptional circumstances existed so as to permit an extension of time to allow the application made by Mr Evans (U2013/1784) to proceed.

Conclusion

[86] This Decision has been made in respect to jurisdictional objections raised by the employer respondent to seven applications for unfair dismissal remedy. The jurisdictional objections have been primarily advanced on the basis that the dismissals were each a case of genuine redundancy and therefore, by operation of subsection 385(d) of the Act, without standing.

[87] The determination of the jurisdictional objections has focused upon the meaning of genuine redundancy as contained in s.389 of the Act. Section 389 of the Act contains two affirmative elements and one negatory element which must be satisfied so as to establish whether a dismissal was or was not a case of genuine redundancy.

[88] Upon analysis, I have determined that the first two affirmative elements were satisfied in respect to all applications. In respect to the negatory element contained in subsection 389 (2) which deals with reasonable redeployment, I have determined that in the circumstances of three of the applications, this negatory element has been satisfied and therefore these were not cases of genuine redundancy. The other four applications do not satisfy the negatory element in subsection 389 (2) and each of those cases involves genuine redundancy.

[89] In view of the findings made as to genuine redundancy, the jurisdictional objections of Downer Mining are upheld in respect to the applications made in matters numbered U2013/1782, U2013/1784, U2013/1786, and U2013/1793. These applications are dismissed and Orders [PR544849, PR544850, PR544852, PR544853] will be issued accordingly.

[90] The dismissal of the applicants in matters numbered U2013/1781, U2013/1787 and U2013/1788 were not cases of genuine redundancy and therefore the jurisdictional objections of Downer Mining made in respect to these matters are rejected. These applications shall be listed for further proceedings upon the written request of the applicants.

COMMISSIONER

Appearances:

Mr K Endacott, from the CFMEU, appeared on behalf of the applicants;

Mr J Goos, appeared on behalf of Downer Mining.

Hearing details:

2013.

Tamworth:

September, 18 & 19.

Sydney:

October, 22.

 1   Exhibit 3 @ Annexure “JWD-3”.

 2   Exhibit 9.

 3   Ms Felicity Klavs v Prestige Painters [2013] FWC 2485.

 4   Exhibit 1 Appendix 1.

 5   Exhibit 3 @ Annexure “JWD-4”.

 6   Exhibit 4 @ paragraph 15.

 7   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

 8   Transcript of proceedings (19 September 2013) @ PN1274.

 9   Transcript of proceedings (19 September 2013) @ PN1353 and see also PN1366.

 10   Transcript of proceedings (19 September 2013) @ PN1406.

 11   Transcript of proceedings (19 September 2013) @ PN1451.

 12   Transcript of proceedings (19 September 2013) @ PN1518 and 1520.

 13   Transcript of proceedings (19 September 2013) @ PN1572.

 14   Transcript of proceedings (19 September 2013) @ PN1726.

 15   Transcript of proceedings (22 October 2013) @ PN2004.

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