• [37] It is unnecessary for the Respondent to have undertaken a 'comprehensive review' of its operations in order for the Applicant's redundancy to be genuine. What is clear in this case is that there were only two trainers located at the Centre and both were affected by the reduction in training hours required by the Centre. Likewise, it was not necessary for the Respondent to provide to the Applicant information about a partial share sale of the Respondent's business that may have triggered a review of whether particular positions in the Respondent's organisation were profitable or viable.

1. The case law cited earlier makes it clear that it is not to the point that another operational decision might have been available to the Respondent. To that extent I reject the Applicant's assertion that the redundancy was not genuine because it could have taken hours from the other trainer and given those hours to the Applicant. This would have been impractical in any case because there were times when two trainers were required to provide training at the same time.

1. The Applicant contended it was harsh that the Respondent had waited until December 2024 to act, when the change in circumstances occurred in August 2023. I consider the opposite is true, in that the Applicant had the benefit of being paid for 34 hours per week for a period of almost 15 months when in fact he was only required to work 24 hours per week.

1. I do not accept that the content of the job advertisement is relevant to whether the redundancy was genuine, in the face of the Respondent's evidence about why it advertises a particular way, and most importantly because the job that was filled was on fundamentally the same terms that were offered and rejected by the Applicant.

• [38] Further, the job advertisement is not evidence of some other role that the Applicant was not offered. There is no evidence to support the existence of another role, other than the one the Applicant rejected.

• [39] Finally, I do not accept the Applicant's assertion that he was made redundant because of his pay and entitlement enquiries. The evidence does not support such a conclusion. I also accept the Respondent's evidence that it is difficult to get good trainers in locations where correctional facilities are often located.

Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

• [40] Clause 29 of the Award deals with consultation as follows:

29. Consultation about major workplace change

29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

29.2 For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(c) any other matters likely to affect employees.

29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).

29.5 In clause 0 significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

29.6 Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.

• [41] In this case, I am satisfied that the Respondent met its obligations to consult. It gave written notice to the Applicant on 15 November 2024, held discussions with him and his representative, and agreed to a slightly higher hourly rate of pay following a request by the Applicant. The evidence is clear that the Applicant had the opportunity to discuss the restructure and propose alternatives.

• [42] I do not agree with the Applicant that the fact the Respondent advertised a training role on the same day the Applicant rejected the offer of redeployment meant the consultation was not genuine.

Was it reasonable in all the circumstances for the employee to be redeployed in the employer's enterprise?

• [43] As set out earlier, s.389(2) provides that a person's dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise.

• [44] For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[11] The word 'redeployed' in section 389(2) of the Act should be given its ordinary and natural meaning, which is to 'transfer to another job, task or function'.[12]

• [45] To the extent there was another position available, that being a fixed term contract for 24 hours per week, this was offered to the Applicant and rejected by him.

• [46] I do not accept the Applicant's submissions to the effect that "continuing to employ the Applicant in the same position was 'perfect' redeployment". This is because I accept the 34 hour per week job the Applicant held was no longer required.

• [47] Much was made by the Applicant that the job advertisement indicated a salary range higher than what the Applicant was offered. I accept the evidence of the Respondent that this was a strategy to draw increased candidates, and it did in fact employ someone on $40 per hour which was what was offered to the Applicant.

• [48] There was no suggestion from either party that there was any other nearby location or position that the Applicant could have been redeployed to.

• [49] For the above reasons, I am satisfied that the Applicant's employment came to an end for reason of a genuine redundancy within the meaning of s.389 of the Act.

• [50] As a result, the Applicant is not an employee who is protected from unfair dismissal and his application under s.394 of the Act must be dismissed. An order dismissing the application (PR787403) will be issued with this decision.

Ms N. King, legal representative from Lander & Rogers, for the Applicant.

Ms S. Masters, legal representative from Edge Legal.

[1] See Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1548.

[3] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5.

[4] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27].

[5] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 at p. 373.

[6] Kieselbach v Amity Group Pty Ltd PR973864 at [34].

[7] [2010] FWAFB 3488.

[8] [2010] FWA 674.

[9] [2016] FWCFB 7202.

[10] [2014] FWC 7829 at [16]

[11] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36].

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