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[2026] FWC 605
General information, not legal advice.
Fair Work Commission
2026-02-24
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - objection that dismissal was a case of genuine redundancy - section 389 - whether job required to be performed by anyone - whether compliance with consultation obligations in Modern Award - whether reasonable in all the circumstances for applicant to be redeployed
[1] This decision concerns an application by Ms Mergime Beha (the Applicant) for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the Act) for what Ms Beha alleges was the unfair dismissal from her employment with her previous employer, WorkPac Pty Ltd (WorkPac/the Respondent). The Applicant's employment with WorkPac came to an end on 20 October 2025 as a result of what WorkPac submitted was a case of genuine redundancy. 'Genuine redundancy' is defined for the purposes of Part 3-2 of the Act in s.389. Ms Beha disputed WorkPac's claim that her dismissal was a case of genuine redundancy within the meaning of s.389 of the Act.
[2] The Applicant was employed as a casual from 29 June 2022 to 20 October 2025. Her employment was governed by her contract and the WorkPac Coal Mining Enterprise Agreement 2019 (the Agreement). WorkPac is a labour hire company. At the time of dismissal, the Applicant was undertaking work with the Employer's client, BMA at the Peak Downs Mine.
[4] Section 389 of the Act provides as follows:
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) 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:
(b) the enterprise of an associated entity of the employer.
[5] The Applicant had taken a period of leave from 22 July 2025 to 20 October 2025. This leave was required to be approved by both WorkPac and the host employer. The evidence before the Commission established that this approval was provided to the Applicant.
[6] The Respondent submitted that on 6 August 2025, they were informed by correspondence from the host employer that it no longer required the services of Ms Beha. Due to the contractual obligations with BMA, the Respondent stated that it was unable to disclose this correspondence.
[7] The Applicant had been in Greece dealing with family matters during the period of leave. Ms Tania-Maree Ferguson, Site Project Coordinator, provided evidence that they made several attempts to contact the Applicant by telephone during her period of leave, to update her in relation to the correspondence they had received from BMA on 6 August 2025 as follows:
"The Respondent attempted contact on 15 August 2025 and left a voicemail message for the Applicant to return contact.
The Respondent made a secondary attempt to contact the Applicant on 26 September 2025, via text message and voicemail, requesting return contact.
The Respondent attempted contact on 02 October 2025, via voicemail.
Following these failed contact attempts, the decision was made to await the Applicants return from her overseas travel before attempting further contact."
[8] The Applicant disputed that these attempts to contact her by phone had been made. In the alternative, however, she was concerned about these contact attempts, in terms of her right to disconnect. However, she also enquired as to why an email was not sent to her, instead of attempting to call her when she stated it was apparent that she was overseas. The Applicant said that there was no record of the Respondent's contact attempts in her phone log.
[9] The Applicant was informed that her job had been made redundant by telephone and then by letter on 20 October 2025. WorkPac stated they have an operational preference to deal with these matters in person, if able to on completion of the employee's leave. The letter the Respondent sent was as follows:
WorkPac writes in relation to your casual assignment with Minau: BMA (Client) at Peak Downs Mines (Site) as a Trades Assistant Level 3 (Position).
Further to your discussion of 20th October 2025 with Telya Young, Recruitment Coordinator, the Client has advised that as of 20th October 2025, it no longer requires the Position you have been performing on Site. Accordingly, the Client has revoked the requirement for WorkPac to supply labour to the Position after 20th October 2025.
In those circumstances, this correspondence confirms your discussion with Telya Young, during which you were advised that your casual assignment with the Client will end on 20th October 2025. As a casual employee, your employment with WorkPac ceases at the end of each assignment.
Despite your assignment with the Client coming to an end, WorkPac will work with you to try and source you an alternative assignment that suits your skillset. Please liaise with your Recruitment Coordinator and update your skills, experience and work preferences as soon as possible to assist WorkPac in reviewing whether any other suitable opportunity elsewhere can be identified.
WorkPac appreciates that this is unwelcome news and I encourage you to utilise WorkPac's EAP should you require further support during this time. I have enclosed a brochure for your reference.
Please feel free to contact the local WorkPac office should you wish to discuss the contents of this letter further.
[10] The Applicant contended that the dismissal was not a case of genuine redundancy. She argued that whilst WorkPac communicated to her that her position was no longer required, that she has been told by other employees at the mine site, that her position was filled by other new BMA employees.
[11] The Respondent contended that the Applicant's dismissal was a case of genuine redundancy in that the Respondent no longer required the Applicant's job to be performed by any employee of WorkPac. The Respondent stated that they "do not hold authority to place or submit any employees to the client" to that position. They submitted:
"the Respondent no longer held authority to supply labour to the role, the position was no longer an active role within the Respondent's business. The employment relationship with the Applicant therefore came to an end by reason of redundancy. The Respondent will submit that any replacement of the role by our client without the Respondent's involvement does not detract from the genuine redundancy of the Applicant's role with the Respondent."
[12] The Applicant submitted at the Hearing that her position was being filled by others. She submitted that WorkPac was, around the time she was made redundant, advertising for similar jobs and is now currently advertising a job listing which is the same as the position she was made redundant from. The Applicant provided screenshots of this. It was open to the Applicant to apply for these positions.
[13] The Respondent acknowledged the Applicant's allegation that they had advertised Trades Assistant roles similar to her role; they submitted that these were not available at the time of the Applicant's dismissal in October 2025.
"The first part of s 389(1)(a) turns on the existence of a decision in fact made by an employer. It is the employer's decision to no longer require a person's job to be performed by anyone. The provision does not look to whether the employee's position, in terms of job title, was no longer required, but whether their "job", in the sense of the nature of the work they performed, was no longer required. Section 389(1) refers to a decision by the employer and no one else.
The second part of s 389(1)(a) provides that the job must have ceased to be needed "because of changes in the operational requirements of the employer's enterprise". An employer determines what those changes might be or if they are needed. There is no reasonableness inquiry in s 389(1). Therefore, the fact that the employer, due to changes in operational requirements, no longer required the work to be performed by anyone need not have been reasonable."[4]
[15] I am satisfied on the evidence that WorkPac was no longer required by their client to fill the Applicant's previous role at the BMA mine site. WorkPac was the Employer of the Applicant; as such, it is not relevant as to whether BMA internally (or through another labour hire contract) employed another employee in that position. What is relevant to this matter is whether WorkPac was required to refill that role, the evidence has established that this is not the case. The job was redundant and the requirements of s.389(1)(a) have been met in this case.
[16] The consultation obligations are in clause 22 of the relevant Agreement:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce change to the regular roster or ordinary hours of work of employees.
22. l For a major change referred to in clause 22 (a):
(a) the Company must notify the relevant employees of the decision to
22.2 The relevant CMWs may appoint a representative for the purposes of the procedures in this clause. If:
(a) a relevant CMW appoints, or relevant CMWs appoint, a representative for the purposes of consultation and
(b) the CMW or CMWs advise the Company of the identity of the representative;
then the Company must recognise the representative.
22.3 As soon as practicable after making its decision, the Company must:
(b) the effect the change is likely to have on the CMWs; and
(c) measures the Company is taking to avert or mitigate the adverse effect
22.3.2 For the purposes of the discussion - provide, in writing, to the relevant CMWs:
(a) all relevant information about the change including the nature of the
(b) information about the expected effects of the change on the CMWs;
22.4 However, the Company is not required to disclose confidential or commercially sensitive information to the relevant CMWs.
22.5 The Company must give prompt and genuine consideration to matters raised about the major change by the relevant CMWs.
22.6 If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Company, the requirements set out in clauses 22.1 (a), 22.2 and 22.3 of this clause are taken not to apply.
22.7 In this term, a major change is likely to have a significant effect on CMWs if it results in:
22.7.1 the termination of the employment of CMWs; or
22.7.2 major change to the composition, operation or size of the Company's
22.7.3 the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
22.7.5 the need to implement or alter shift work arrangements; or
22.7.7 the need to relocate CMWs to another workplace; or
22.7.9 Change to regular roster or ordinary hours of work
22.7.10 For a change referred to in clause 22.1 (b):
a) The Company must notify the relevant CMWs of the proposed change; and
22.8 The relevant CMWs may appoint a representative for the purposes of the procedures in this term.
(a) a relevant CMW appoints, or relevant CMWs appoint, a representative for the purposes of consultation; and
(b) the CMW or CMWs advise the Company of the identity of the representative;
then the Company must recognise the representative.
22.8.1 As soon as practicable after proposing to introduce the change, the Company must:
(a)discuss with the relevant CMWs the introduction of the change; and
(b) for the purposes of the discussion - provide to the relevant CMWs:
i) all relevant information about the change, including the nature of the change; and
ii) information about what the Company reasonably believes will be the effects of the change on the CMWs; and
iii)information about other matters that the Company reasonably believes are likely to affect the CM Ws; and
iv) invite the relevant CMWs to give their views about the impact of the change (including any impact in relation to their family or
(c) However, the Company is not required to disclose confidential or commercially sensitive information to the relevant CMWs.
(d) The Company must give prompt and genuine consideration to matters raised about the change by the relevant CMWs.
(e) In this clause the relevant CMWs means the CMWs who may be affected by the change referred to in sub clause 22.7."
[17] The Respondent submitted that the consultation obligations only apply if there is a 'definite decision to introduce a major change to production, program, organisation, structure or technology'. The Respondent submitted that the decision to make the Applicant's role redundant was not a 'major change' and therefore, the consultation provisions as set out above are not applicable.
[18] In the alternative, on the basis the Applicant argued that there was a situation of a 'major change', the Respondent submitted that they informed the Applicant as soon as they could in relation to the redundancy. The Respondent contended that they communicated promptly once the Applicant returned to Australia, including telephoning the Applicant and sending the correspondence as set out above.
[19] In order for the consultation clause of the Agreement to apply, there must have been a "definite decision to introduce a major change to production, program, organisation, structure or technology". The Applicant individually was made redundant, not as part of a wider cohort of WorkPac employees. Additionally, the redundancy was caused by the actions of a third party, being BMA and their operational requirements to no longer require the Applicant's labour, to be provided through her Employer, WorkPac as the labour hire provider of this position. Therefore, the decision could not characterised as a "major change" for the purposes of the Agreement. The consultation clause is therefore not applicable in these circumstances and the Respondent has complied with s.389(1)(b) of the Act.
[20] The Respondent submitted that there were no suitable alternative roles for the Applicant with either BMA at Peak Downs or any other of their clients at the time of termination. They submitted that:
"On 22 October 2025, the Respondent discussed a site cleaning role for another of the Respondents clients with the Applicant. The Applicant advised the role was not suitable and did not wish to pursue the opportunity."
[21] They stated that while they had similar roles in July 2025 and January 2026, that there were no similar roles between August and October 2025. They stated that they had "a track record of redeploying the Applicant where possible", which was unable to occur at this time.
"In response to mr page's claim that workpac contacted myself for a new roll, for a temporary roll for one or two weeks cleaning draglines for the holiday period to cover workers who took holidays, the roll was of less pay and I personally found this an insult to my ability as a worker that they would offer me something so degrading and I feel like it was like rubbing sale into the wounds by offering me a temporary roll on the same site where the roll I was just terminated from still exists."
[23] In Helensburgh the majority described the nature of the inquiry required under s. 389(2) as follows:
"The word "redeploy" does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of "redeploy" - "to rearrange, reorganise, or transfer" - envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a "job". The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, "redeployed" looks to whether there was work, or a demand for work, within the employer's enterprise or an associated entity's enterprise that could have been performed by the otherwise redundant employee.
Third, the inquiry is whether redeployment "would have been reasonable". The words "would have been" direct the FWC to consider a hypothetical situation. A hypothetical is inherently a consideration of a situation changed from what it was. The use of the past tense directs attention to the situation at the time of the dismissal. The hypothetical inquiry under s 389(2) therefore asks what, at the time of the dismissal, could have been done to redeploy the employee within the employer's enterprise. In other words, would it, at the time of the dismissal, have been reasonable to redeploy the employee to perform other work within the employer's enterprise."[5]
The employee was placed on an assignment with a host.
The host had the right to terminate the assignment of an employee at any time
The host advised the employer the role was no longer required.
The employer had no suitable vacant roles for redeployment of the employee at the time the host gave that advice."
[25] Having considered the above evidence and submissions, it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent's enterprise. At the time of the Applicant's dismissal, the Respondent did not have a suitable role for the Applicant to fill. The submissions and evidence of the Applicant regarding roles being advertised in July 2025 and January 2026 could well have been relevant should the dismissal have occurred at these times. However, the Applicant was terminated in October 2025 and given the lack of available roles for the Applicant at this time, redeployment could not have been considered reasonable.
[26] Having concluded that each requirement under s.389 of the Act has been met, the Applicant's dismissal was therefore a case of genuine redundancy. Accordingly, pursuant to s.385(d), the Applicant has not been unfairly dismissed.
[27] The Applicant's s.394 application is dismissed.
[4] Ibid at [30], per Gageler CJ, Gordon and Beech-Jones JJ.
Printed by authority of the Commonwealth Government Printer
Mergime Beha
WorkPac Pty Ltd [2026] FWC 605