Grounds 1 and 2: Alleged misconstruction of s 389(2)
46 It is convenient to address grounds one and two together, as the parties did. The contention that the applicant advances is straightforward. It claims that s 389(2) of the FW Act, insofar as it contemplates a dismissed employee's potential for redeployment, does not authorise consideration of potential redeployment to roles that are already filled by others. Thus, by asking whether there were other employees (namely, Mentser and Nexus employees) whose engagement at the Helensburgh Mine could be brought to an end, the FWC misunderstood the nature of the inquiry that it was authorised (indeed, required) to make.
47 That is said to be so for four reasons.
48 First, the applicant submits that "redeploy", understood by reference to the ordinary meaning of the word, means to deploy again to another position. Necessarily, it is said, one can only be redeployed to a position that exists; which is to say, one that is vacant or available.
49 Second, the applicant points to the statutory context within which s 389(2) sits. Necessarily, a case of genuine redundancy requires that there first be "changes in the operational requirements of the employer's enterprise": FW Act, s 389(1)(a). The reasonableness of such changes is irrelevant: if they are established, then, subject to the other aspects to which the section gives voice, the statutory criteria in s 385(d) cannot be made out. The applicant submits that is a strong contextual indicator that the concept of redeployment in s 389(2) was not intended to contemplate the creation of positions via the manipulation of other operational requirements.
50 Third, the applicant submits that the "genuine redundancy" carve-out which was introduced by the FW Act should be understood to have been intended as an enactment of the considerations that had historically guided the FWC (or its statutory forebears) in considering whether a redundancy-related dismissal was "harsh, unjust or unreasonable". Historically (which is to say, under predecessor unfair dismissal regimes that did not contain any analogue of the carve-out for which s 389 of the FW Act now provides), the potential availability of redeployment in the case of dismissals effected for operational reasons was a factor that was apt to inform whether a particular dismissal was "harsh, unjust or unreasonable". The jurisprudence developed by the FWC and its predecessors did not, the applicant submits, contemplate inquiries into whether or not an employer's enterprise ought to have been reorganised so as to create a position for an otherwise redundant employee. The applicant contends that there should be no reason to construe ss 385(d) and 389 of the FW Act in a way that expands upon that jurisprudence.
51 Finally, the applicant submits that a construction of those provisions which authorises inquiries into whether or not an employer ought to create redeployment opportunities would be one that sits uneasily with the object to which they are evidently directed. It submits that the concept of "genuine redundancy" was introduced to strike "…a balance between the needs of business and the needs of employees and the need for procedures which are 'quick, flexible and informal' ([FW Act] s 381)". To construe s 389(2) of the FW Act as the Full Bench did would, it is said, be "…apt to defeat these objects, because it introduces a significant and unhelpful degree of complexity into unfair dismissal proceedings".
52 Something should be said about the principles that govern the task of statutory construction upon which the applicant's contentions turn. They are well-settled and not materially disputed. Fundamentally, the Court must strive to "…give meaning to the legislative command according to the terms in which it has been expressed": Northern Territory v Collins (2008) 235 CLR 619, 623 at [16] (Gummow A-CJ and Kirby J). That task begins with a consideration of the meaning of the words in which a provision is expressed: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, 13 at [26] (French CJ, Hayne, Kiefel and Bell JJ). If those words (read in their proper context) are unambiguous, then they should be accorded their natural, clear meaning: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46-47 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265-266 at [34] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
53 In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 at [39], the High Court (French CJ, Hayne, Crennan, Bell and Gageler JJ) relevantly observed:
…Understanding context has utility if, and so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text.…
54 Thus, if the words of a statute, either by themselves or when read in their proper context, are obscure or capable of sustaining more than one meaning, the Court must embark upon a search for which of those meanings most accords with the intention that should be presumed to have animated their enactment. The Court's task is to identify and give effect to that construction.
55 There can be little doubt that s 389 of the FW Act - and, more broadly, the significance of "genuine redundancy" to s 385(d) - was intended to narrow the circumstances in which an employee might be said to have been "unfairly dismissed"; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a "case of genuine redundancy" is immune from relief under Pt 3-2. That is so even if it might unambiguously qualify as "harsh, unjust or unreasonable".
56 There is, then, some force to the applicant's contention. The proper construction of s 389(2) of the FW Act will be one that takes account of the facilitative character of the immunity that is inherent in s 385(d) of the FW Act.
57 That immunity, however, is not absolute. Indeed, s 389(2) serves unambiguously to qualify it and it is the scope of that qualification, rather than the immunity itself, that falls to be construed. That task begins and ends with an analysis of the words in which the qualification is expressed: Alcan at [47]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 374 at [37] (Gageler J). On any view, they contemplate a qualification of some width: specifically, redeployment that "in all [of] the circumstances" would have been "reasonable".
58 Those words do not appear in s 389(1) of the FW Act. A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer's enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither "in all [of] the circumstances" or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.
59 Section 389(2), by contrast, requires that the possibility of redeployment should be assessed according to what "would have been" reasonable. That necessarily envisages some analysis of the measures that an employer could have taken in order to redeploy an otherwise redundant employee. In its proper context, "redeployed" can only refer to the prospect that an otherwise redundant employee might be taken from a position no longer required and deployed to the discharge of other tasks. If, in a given case, there were measures that could have been taken and which, in all of the circumstances, could reasonably have led to redeployment, that will suffice to engage the exemption to the immunity.
60 Given the undeniable width of the text in which the exemption is couched, there is no reason to excise from "all [of] the circumstances" the possibility that an employer might free up work for its employees by reducing its reliance upon external providers. The existence of that possibility in any given case is a circumstance that is capable of informing whether redeployment "would have been reasonable".
61 Unquestionably, a construction consistent with that observation introduces a measure of complexity that would be absent if "redeployed" were read as "redeployed to a position not currently occupied". Nonetheless, it is inherent in the existence of the exemption to immunity from relief for unfair dismissal that a measure of complexity was intended. The challenge for the applicant is to establish that there was a limit to that intention and that the construction favoured by the Full Bench goes beyond that limit.
62 That is a burden that cannot be discharged given the unmistakeably broad terms that s 389(2) employs. If there were circumstances that were intended to be inapt to inform whether, in any given case, "redeployment would have been reasonable", the legislature would not have used the qualifying phrase, "in all [of] the circumstances" (emphasis added).
63 The applicant's contention to the contrary was undermined somewhat by its concession during the hearing - properly given, we add - that s 389(2) of the FW Act might be understood to contemplate that dismissals will not amount to "case[s] of genuine redundancy" in circumstances where employees could be maintained in their employment for a short period if that would obviate the need for dismissal. With respect, that must be right. There is no reason to think that s 389(2) could not cover circumstances in which an employer dismisses employees on operational grounds where those employees could be redeployed to positions which are not currently available but are about to become available, for example, where it knows that other employees are soon to retire or that a contract with a third party for the performance of work is soon to expire.
64 A similar analysis would apply to an employer who preferred dismissal over retraining. If, in a given case, there is a position to which an otherwise redundant employee might be redeployed; but for which he or she is unqualified for want of appropriate training, the possibility that he or she might undertake that training (and, thereby, obtain that qualification) is a circumstance that is apt to inform whether the alternative of dismissal would qualify as "a case of genuine redundancy". The fact that there might be some barrier that makes redeployment more difficult or more involved than it otherwise could be - whether that barrier takes the form of a need for retraining or, as here, the pre-existing occupation of roles by contractors - is not to the point. Whether redeployment "would have been reasonable in all [of] the circumstances" requires analysis of what an employer could have done apart from dismissing the employee.
65 That being so, the immediate unavailability of a position to which a redundant employee could conveniently have been redeployed does not necessarily inoculate an employer against a charge that a dismissal was "not a case of genuine redundancy". Naturally, it is a circumstance that, in any given case, might well favour a conclusion that redeployment would not have been reasonable. Whether that is so, however, will depend upon "all [of] the circumstances".
66 It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC's assessment of what "would have been reasonable in all [of] the circumstances".
67 That is what occurred here. By proceeding on that premise, neither the Full Bench nor Commissioner Riordan misunderstood what s 389 of the FW Act contemplates. The state of satisfaction that s 385(d) of the FW Act requires the FWC to form was formed in a manner consistent with what the FW Act authorised; and the refusal or failure by the Full Bench to conclude otherwise was not in error.
68 It follows that the applicant's first and second grounds of review must fail.