See Fair Work Act 2009 s.389(1)(a)
A job involves 'a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee'.[1]
Where there has been a reorganisation or redistribution of duties, the question is whether the employee has 'any duties left to discharge'.[2] If there is no longer any function or duty to be performed by that person, his or her position becomes redundant.[3]
An employee may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[4]
The test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[5]
The reference to 'a job no longer being performed by anyone' refers to anyone employed by the business.[6] Therefore, the position can be performed by independent contractors supplying services.[7]
It should be noted that it is the employee's 'job' that is no longer required to be performed, rather than the employee's 'duties'.[8]
The Fair Work Act does not define the term 'operational requirements'. It is a broad term that permits consideration of many matters including:
Some examples of changes in operational requirements are:
The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.[11]
[1] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
[2] ibid.
[3] ibid.
[4] Dibb v Commissioner of Taxation [2004] FCAFC 126 (13 May 2004) at paras 43–44, [(2004) 136 FCR 388].
[5] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 (Hamberger SDP, 19 February 2010) at para. 27.
[6] Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows [2012] FWA 3126 (Hampton C, 6 July 2012) at paras 73‒75.
[7] ibid.
[8] Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
[9] Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496 (4 October 1996), [(1996) 69 IR 370 at p. 373].
[10] Explanatory Memorandum to Fair Work Bill 2008 at para. 1548; see for example Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v Wilson [2014] FWCFB 1043 (Richards SDP, Spencer C, Simpson C, 12 February 2014) at para. 43, [(2014) 240 IR 409].
[11] Kieselbach v Amity Group Pty Ltd, PR973864 (AIRC, Hamilton DP, 9 October 2006) at para. 34.