As the middleman, the labour hire company was not excused of its legal obligations
In June 2020, the Construction, Forestry, Maritime, Mining, and Energy Union filed unfair dismissal applications on behalf of five applicants. The applicants were employed by a large labour hire company (“the respondent”).
The applicants were working on a development contract at the Appin Coal Mine. In May 2020, the respondent was advised that 23 workers were no longer required at the site. The respondent contacted the affected individuals via short telephone calls.
At the same time, the respondent was recruiting 90 experienced mineworkers for another project. Four of the five applicants were put forth in the recruitment process (the fifth not having the required level of expertise), but none were redeployed into any of the roles.
The respondent asserted that the redundancies were genuine and that, as it was a labour hire company, it did not have positions “in house” for the applicants.
Further, under the Workpac Coal Mining Agreement 2019, employees must be notified of a “major change” to the business. The respondent asserted that given the terminations were not the result of changes to the respondent’s business, this obligation was not triggered.
The applicants argued that the respondent was required to fulfil this consultation obligation, and this was not met with the brief telephone conversations and the sending of a pro forma letter.
Moreover, the applicants submitted that the relevant test under the Fair Work Act 2009 s 389(2) was whether it was reasonable to redeploy the applicants into another role in the respondent’s business. The applicants also emphasised that there were 90 vacancies at the time of the terminations.
The Commission agreed with the applicants’ submissions, stating that the respondent should, at the very least, have held a virtual meeting of the 23 employees to satisfy its consultation obligations.
The Commission also found that the applicants should not have had to compete for the new role. Rather, under s 389(2), the respondent was legally obliged to place the applicants into the new project.
Given this, the Commission found that the applicants’ dismissals were not cases of genuine redundancy and found all five were unfair dismissals. Remedy has not yet been set.
Key Takeaways:
- Under s 389(2), a dismissal is not a case of genuine redundancy if it would have been reasonable for the employee to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer.
