In an important ruling, Fair Work Australia (FWA) has found that an employer’s dismissal of 10 mineworkers was not a case of genuine redundancy because the employer still required that the job be performed by someone.
The company, Xstrata Coal Pty Ltd (Xstrata), was undergoing a restructure which involved:
a) reducing the number of employees in its underground mining crews;
b) outsourcing ancillary and intermittent functions on the mine site such as cleaning, yard and stores functions;
c) increasing the proportion of employees with trade’s qualifications in underground crews; and
d) redistribution of labour.
Post restructure, some 38 mineworker positions (including 19 fixed term positions and 19 permanent positions), six staff positions and 75 contractor positions were deemed to be surplus to the requirements of Xstrata and were subsequently made redundant.
Xstrata’s desire to increase the proportion of mineworkers with trade qualifications on underground work crews resulted in an increase of trades qualified mineworker positions, whilst unskilled/unqualified mineworker roles were made redundant. Subsequently, there was much contention as to whether a ‘genuine redundancy’ had occurred.
Section 389 (1) (a) of the Fair Work Act 2009 (the Act) specifies that a ““person’s dismissal was a case of genuine redundancy if 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…”
Consideration was given by FWA to the term “where the job is no longer required to be performed by anyone” as the outsourcing of ancillary functions to contractors would suggest that the jobs are still being performed by someone. Prior decisions of the Australian Industrial Relations Commission[1], and the full court of the Federal Court of Australia[2] were considered in which it was established that the customary usage and application of the term ‘redundancy’ extends to where the job is no longer needed to be performed by the employees of an employer, even if the work is to be provided in future by a contractor; and any terminations resulting from the introduction of contractors would fall within the definition of ‘genuine redundancy.’
FWA was of the view that the functions performed by crews and their mineworker components were still being performed as they were previously. The fact that additional trade-qualified mineworkers might enhance the work performed did not meaningfully diminish the fact that the work performed by all mineworkers remained essentially the same. FWA found that it was evident that the employer, Xstrata, still wanted the job to be performed, albeit by someone else including new employees. Accordingly, FWA found that the dismissals were not cases of genuine redundancies as defined under section 389 of the Act.
Members seeking advice on redundancies are encouraged to contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or advice@cciwa.com.
[1] Shop Distributive and Allied Employees Association v Bunnings Building Supplies Pty Ltd (134 IR 237).
[2] Dibb v Commissioner of Taxation [2004] (136 FCR 388),