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Swapping redundant positions
Introduction Section 389 of the Fair Work Act 2009 sets out the meaning of genuine redundancy. If the requisite requirements of the section are met, this provides the employer with a defence to an unfair dismissal application. One of the obligations under subsection 389(2) is a requirement for the employer to consider whether in all the circumstances it was reasonable to redeploy the employee within: (a) the employer's enterprise; or (b) the enterprise of an associated entity of the employer. A recent decision on redeployment In a January 2017 decision, a Full Bench of the Fair Work Commission (the Full Bench) determined that whilst “there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wis...
14 February 2017Redundant employees reinstated
Introduction Recently the Fair Work Commission (the Commission) found that employees dismissed for redundancy were unfairly dismissed because the employer failed to: meet the consultations obligations that operate under the applicable enterprise agreement; and consider reasonable redeployment opportunities. Further, as redeployment opportunities were available, the Commission ordered their reinstatement with back pay. Facts Staples Australia Pty Ltd (Staples) dismissed 12 permanent warehouse employees from its Erksine Park site for redundancy. The warehouse was performing overbudget for several years and labour accounted for 60% of the costs. Staples made its decision to reduce the number of permanent warehouse staff on 5 July 2016. The decision was announced on 11 July 2016 at the Joint Consultant Committee (the JCC) which is provided for ...
13 February 2017Two for the price of one - Casual under the Agreement but not the Fair Work Act
Recently the Federal Circuit Court (the Court) determined that an employee employed by a labour hire company was a casual employee under the enterprise agreement but was not a causal employee under the Fair Work Act 2009 (Cth) (the Act), entitling the employee to annual leave for his period of employment. Background The employee was employed by labour hire company, Workpac Pty Ltd as a truck driver at a mine in central Queensland. The employee was employed under the WorkPac Agreement (the agreement). Pursuant to that agreement, the employee was employed as a casual employee. Findings The Court determined that the employee was a casual employee under the agreement as he was employed as a casual on commencement of employment. Under the agreement, casual employees were not entitled to annual leave. However, the Court also determined that an employee’s ca...
30 January 2017