Redeployment obligations under Genuine Redundancy – Be reasonable.

The recent Fair Work Commission Full Bench decision in Skinner v Asciano Services Pty Ltd [2017] FWCFB 574 has shed new light on what the Tribunal will consider to be a reasonable genuine redundancy.

Generally speaking, there is no obligation on an employer to implement or facilitate a swap arrangement between employees whose positions are redundant and others who wish to volunteer for redundancy.

However, the redeployment obligation in s 389(2) of the Fair Work Act 2009 (Cth) (the Act) applies if it is “reasonable in all circumstances.”

In this case, it involved the redundancy and swapping of roles between vehicle operators in circumstances where the employer had previously allowed swaps in similar circumstances and there were potential swap possibilities in the current round of redundancies offered.

When considering redeployment options, the employer indicated that it would:

1.     consider each of the employees for alternative roles;

2.     advised the employees of vacant positions and opportunities to transfer to its other operations; and

3.     invited each of the employees to indicate their interest in any of the available roles.

But after the employer had done this, the employer then maintained that the employees either showed no interest in the available positions, declined offers or were unsuccessful in their application due to a lack of qualifications.

The Commission decided that the employer failed to consider the possibility of swaps where it should have been considered like it had in the past. In doing so, the employer failed to comply with its obligation under s 389(2) of the Act.

What employers need to do before terminating on grounds of redundancy

Before terminating an employee on the grounds of redundancy, employers should consider all redeployment options including whether a voluntary job swap is feasible. Factors that may be relevant include:

• whether the positions involve identical or similar skills
• the burden and costs of transferring or training the swapped employee
• whether a job swap had previously been allowed in similar circumstances.

If you would like advice about effective means of making employees redundant, contact Adam Foster, Associate, Lewis Holdway Lawyers on (03) 9629 9629. Find out more about Business Law.