Understanding and Implementing Organisational Change within the ANU Context with Bradley Beasley & Kate Leonard

Presenter Bradley Beasley LLM, LLB, Grad Cert Legal Practice Legal Practitioner of the: Supreme Courts NSW, ACT and the High Court of Australia

The Legal Background to Redundancies Redundancies are not part of the realm of common law contracts, nor do they fall within the usual categories of terminations; R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6. Redundancies are not part of the realm of common law contracts, nor do they fall within the usual categories of terminations; R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6. If the employee is terminated for other reasons than redundancy the dismissal will not be considered a redundancy, providing the employee with a right of redress. Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6. If the employee is terminated for other reasons than redundancy the dismissal will not be considered a redundancy, providing the employee with a right of redress. Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6. For example the employee's job was not made redundant, the duties and job functions related to his/her contract of employment are still being performed. For example the employee's job was not made redundant, the duties and job functions related to his/her contract of employment are still being performed. The law recognises that redundancies are a form of termination they are like death, something beyond the control of the of the employee; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). The law recognises that redundancies are a form of termination they are like death, something beyond the control of the of the employee; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). Redundancies have about them a spectrum of circumstances and one should not fall into saying 'well all redundancies are the same and should treat them in the same way’; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). Redundancies have about them a spectrum of circumstances and one should not fall into saying 'well all redundancies are the same and should treat them in the same way’; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). When a Redundancy occurs the employee is entitled to more favourable treatment and failing to do so may result in a need of correction; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). When a Redundancy occurs the employee is entitled to more favourable treatment and failing to do so may result in a need of correction; Adams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000).

The Legal Background to Redundancies So what is a redundancy? So what is a redundancy? It is something that has nothing to do with fault of an employee. It is something that has nothing to do with fault of an employee. It has everything to do with the employer no longer desiring the job being performed by anyone. R v Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6 at p 8 It has everything to do with the employer no longer desiring the job being performed by anyone. R v Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6 at p 8 However this does not prevent the employee’s work being split up and spread amongst other employees. Bunnett v Henderson Federal Spring Works Pty Ltd (1989) 4 VIR 346 at p 376 However this does not prevent the employee’s work being split up and spread amongst other employees. Bunnett v Henderson Federal Spring Works Pty Ltd (1989) 4 VIR 346 at p 376 However the employer must have a basis for not having the job performed by anyone, those reasons are: However the employer must have a basis for not having the job performed by anyone, those reasons are: Technological Change; Technological Change; Economic issues affecting the company; Economic issues affecting the company; Company amalgamations; Company amalgamations; Restructuring; Restructuring; Reorganising employment. ICI Australian Operations Pty Ltd (t/as Dulux Australia) v Hutton (1993) 47 IR 288 at p 296 Reorganising employment. ICI Australian Operations Pty Ltd (t/as Dulux Australia) v Hutton (1993) 47 IR 288 at p 296

The Legal Background to Redundancies Consultation The employer is required to consult with an employee and/or their union about the change. The employer is required to consult with an employee and/or their union about the change. The employee and/or their union have a right to make a submission to avert the employee's position from being made redundant. The employee and/or their union have a right to make a submission to avert the employee's position from being made redundant. Prior to WorkChoices if an employer failed to genuinely consider the employee’s or unions submissions the employee could run an unfair dismissal. Prior to WorkChoices if an employer failed to genuinely consider the employee’s or unions submissions the employee could run an unfair dismissal. An employee or union can still run an unfair dismissal if the employee or union can demonstrate the redundancy was a sham, that is the redundancy was not done for genuine operational reasons. An employee or union can still run an unfair dismissal if the employee or union can demonstrate the redundancy was a sham, that is the redundancy was not done for genuine operational reasons.

The Legal Background to Redundancies Notice Notice is intended to provide the employee with an opportunity to adjust to the change, referred to in Macken, McCarry & Sappideen., The Law of Employment, LBC, 4 th ed at p 184 As von Doussa J stated in Sinclair v Anthony Smith and Associates Pty Ltd 1 December 1995 unreported: [it is to allow time for the employee to deal with the emotional family and domestic stresses likely to descend upon them when the employment is brought to an end].

The Legal Background to Redundancies Severance Payments Severance payments are intended to compensate the employee for: Non- transferable credits Non- transferable credits Inconvenience; and Inconvenience; and hardship imposed on employees as a result of the loss of the employment through no fault of their own. Termination Change and Redundancy Case (1984) 8 IR 34 at p 331 referred to in Macken, McCarry & Sappideen., The Law of Employment, LBC, 4 th ed at p 184 hardship imposed on employees as a result of the loss of the employment through no fault of their own. Termination Change and Redundancy Case (1984) 8 IR 34 at p 331 referred to in Macken, McCarry & Sappideen., The Law of Employment, LBC, 4 th ed at p 184

Severance Payments Employees do not have a general right to severance payments unless they are set out in: Employees do not have a general right to severance payments unless they are set out in: Statute; Statute; An Award; An Award; An Enterprise/Collective Agreement; or An Enterprise/Collective Agreement; or Your Contract of Employment/AWA/ITEAs Your Contract of Employment/AWA/ITEAs The Legal Background to Redundancies

Severance Rights Consequently it is through peak bodies such as Trades and Labor Councils at state and territorial level and the Australian Council of Trade Unions at a national level who ran test cases before the Industrial Commissions in the relevant jurisdictions that were successful in establishing severance scales in awards.

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