0:00
I want to talk about genuine redundancy. So this is governed by section 389 of the Fair Work Act. And there’s a couple of really important high level principles that I would like all of you to get out of today’s session. And those high level principles are as follows the section 389 talks about a couple of things, but it talks about in particular, it talks about for a redundancy to be genuine, it must be a case that the dismissal was a genuine redundancy because the person’s employer no longer required, the jobs be performed because of changes in the operational requirements of the enterprise, or alternative and also, that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

So the big word there is the consult part of part B of Section 389. So most people are good at meeting the requirements on A that genuinely speaking, or generally speaking, most people will undertake a redundancy in normally pretty genuine circumstances. Sometimes you do get a situation where a redundancy is somewhat contrived to achieve a particular outcome that you’ve got, you know, a duck that looks like a duck that’s dressed up as a chicken. But ultimately, most of the time redundancies have a genuine reason for happening.

And it’s the procedural fairness where the business fails, which can lead to the potential employment claims. And again, those are the things that the Fair Work Commission will focus on in particular. So in terms of consultation, it’s important to note that every single Modern Award, I believe it’s every single Modern Award, and I’ll be corrected, if I’m wrong, has a requirement to consult on any major workplace change. So if you’re looking at making restructuring, or redundancies, there will be a consultation clause in the modern award that will likely apply to the employees affected. I hear a lot from employers that oh well, modern awards don’t apply to me because I pay above the award. Well, that’s simply not the case. We have a situation right now, where modern awards are applicable to a very, very wide set of employees, they apply in various different industries in various different occupations. You also have situations where enterprise agreements apply as well. So again, if there’s a consultation clause in any of those instruments, then that is something that, you know, you will need to be aware of when you’re conducting redundancies.

So another requirement of Section 389 is that it’s not a case of genuine redundancy, if it would have been reasonable in all of the circumstances for the person to be redeployed within either the business itself or an associated entity of the employer. So when you undertake a redundancy process, you must consider any and all vacant positions that are available in your organization, or will become vacant as a result of the restructure. And sometimes it may very well be as simple as we don’t have, you know, room for a full time salesperson anymore. But we have room for a part time salesperson. And regardless of whether or not the individual is likely to find that an acceptable offer of alternative employment or not, we we always maintain it’s important to identify any alternatives, be it you know, regardless of how significantly different they might be, for the purposes of mitigating risk, in any unfair dismissal claims that may be brought before the commission, not putting forward a vacant position or a position that’s become vacant, as a result of the restructure could be a very large procedural flaw should the matter proceed further to a formal hearing for the commission to decide upon.

So I hope that makes sense in terms of some early principles on restructuring and redundancy. We have put together this what we call limited time restructure package for anyone who’s looking at undertaking a restructure, and that is and that would offer the following services as part of the restructure package that we will provide you with the restructuring and redundancy plan. We provide you with advice on the payments and the related obligations. We give you the initial meeting plan the initial consultation letter, we would give you advice about the alternative jobs and selection criteria if it’s applicable, we give you advice on the further consultation discussions. The final meeting plan, the final meeting and the discussions and letters around those things. We can organize for you outplacement an EAP and we can give you a discount for the Fair Work Commission proceedings should you need us to represent you should any matters go before the commission for any for any clients with one to three redundancies or one three employees in that restructure costs $1500 plus GST it’s a limited time offer that we’re offering only for the purposes of This because we come to the end of job keeper. We don’t normally offer this as a one off service. We do have it included in all of our support packages for clients which are essential support performance and risk and HR managers for any clients that are interested in ongoing support arrangements, they are included at free of charge as part of those support packages. So if anyone’s interested in those things, please get in touch with us at ondemandhr.com.au and we can talk you through either a limited time restructuring service or assisting you on an ongoing basis with this being at no extra cost for you as part of a monthly support.