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Section 385 of the Fair Work Act states the following in one of its clauses:
“A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
- (a) the employer’s enterprise; or
- (b) the enterprise of an associated entity of the employer.”
Commissioner Frank Raffaelli went through the background of each one of the 10 workers and found six of them could have been redeployed.
The case provides insights into what redeployment constitutes.
“Any action of Ulan to make some job vacancies known to employees, taking steps to have associated entities delay closing employment opportunities and then with those associated entities offering employment following an open selection process is not redeployment,” Raffaelli said two weeks ago.
“It is merely assisting in the gaining of employment.”
Raffaelli noted that vacancies either existed at or at about the time of the Ulan retrenchments for mineworker positions at the Baal Bone and Beltana/Blakefield South longwall operations, plus the Bulga and Ravensworth mines.
“In considering the reasonableness of any potential redeployment action, it is necessary to recognise that most of the associated mines were lengthy distances from Ulan.
“The closest was Baal Bone, about 100 kilometres distant. Indeed, the relevant certified agreement operating at Ulan provides exceptions to redundancy payments only if alternative employment is arranged by the employer and is within the district.
“Only Baal Bone would fall within such category.”
Two of the 10 workers in the case actually won positions at Baal Bone but made their own job applications.
Xstrata moved to simultaneously cut 122 jobs at its Ulan longwall mine and 158 from its Tahmoor operation in New South Wales last year.
The case was an appeal by Xstrata to a Fair Work Australia ruling earlier this year which found all 10 were not genuine redundancies.
But four of the workers were deemed not to be in the situation to be reasonably redeployed due to personal circumstances, with Raffaelli noting one was “incapacitated due to injury”
