Understanding and Understanding and

Implementing Organisational Change Implementing Organisational Change

within the ANU Contextwithin the ANU Context

withwith

Bradley Beasley Bradley Beasley

& &

Kate LeonardKate Leonard

PresenterPresenter

Bradley Beasley Bradley Beasley LLM, LLB, Grad Cert Legal PracticeLLM, LLB, Grad Cert Legal Practice

Legal Practitioner Legal Practitioner of the: of the:

Supreme Courts NSW, ACT and the High Court of AustraliaSupreme Courts NSW, ACT and the High Court of Australia

The Legal Background to The Legal Background to RedundanciesRedundancies

Redundancies are not part of the realm of common law contracts, nor do Redundancies are not part of the realm of common law contracts, nor do they fall within the usual categories of terminations;they fall within the usual categories of terminations; R v Industrial Commission of South R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op LtdAustralia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6. (1977) 16 SASR 6.

If the employee is terminated for other reasons than redundancy the If the employee is terminated for other reasons than redundancy the dismissal will not be considered a redundancy, providing the employee dismissal will not be considered a redundancy, providing the employee with a right of redress.with a right of redress. Bray CJ in Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op LtdR v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) (1977) 16 SASR 6. 16 SASR 6.

For example the employee's job was not made redundant, the duties and For example the employee's job was not made redundant, the duties and job functions related to his/her contract of employment are still being job functions related to his/her contract of employment are still being performed.performed.

The law recognises that redundancies are a form of termination they are The law recognises that redundancies are a form of termination they are like death, something beyond the control of the of the employee;like death, something beyond the control of the of the employee; Adams v Westfield Adams v Westfield Holdings LtdHoldings Ltd [2000] NSWIRComm 112 (30 June 2000). [2000] NSWIRComm 112 (30 June 2000).

Redundancies have about them a spectrum of circumstances and one Redundancies have about them a spectrum of circumstances and one should not fall into saying 'well all redundancies are the same and should should not fall into saying 'well all redundancies are the same and should treat them in the same way’;treat them in the same way’; Adams v Westfield Holdings LtdAdams v Westfield Holdings Ltd [2000] NSWIRComm 112 (30 June 2000). [2000] NSWIRComm 112 (30 June 2000).

When a Redundancy occurs the employee is entitled to more favourable When a Redundancy occurs the employee is entitled to more favourable treatment and failing to do so may result in a need of correction;treatment and failing to do so may result in a need of correction; Adams v Westfield Adams v Westfield Holdings LtdHoldings Ltd [2000] NSWIRComm 112 (30 June 2000). [2000] NSWIRComm 112 (30 June 2000).

The Legal Background to The Legal Background to RedundanciesRedundancies

So what is a redundancy?So what is a redundancy? It is something that has nothing to do with fault of an employee.It is something that has nothing to do with fault of an employee. It has everything to do with the employer no longer desiring the job It has everything to do with the employer no longer desiring the job

being performed by anyone. being performed by anyone. R v Industrial Commission of South Australia: Ex parte Adelaide Milk Supply R v Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-Op Ltd Co-Op Ltd (1977) 16 SASR 6 at p 8(1977) 16 SASR 6 at p 8

However this does not prevent the employee’s work being split up and However this does not prevent the employee’s work being split up and spread amongst other employees. spread amongst other employees. Bunnett v Henderson Federal Spring Works Pty Ltd Bunnett v Henderson Federal Spring Works Pty Ltd (1989) 4 VIR 346 at p (1989) 4 VIR 346 at p 376376

However the employer must have a basis for not having However the employer must have a basis for not having the job performed by anyone, those reasons are:the job performed by anyone, those reasons are: Technological Change;Technological Change; Economic issues affecting the company;Economic issues affecting the company; Company amalgamations;Company amalgamations; Restructuring; Restructuring; Reorganising employment. Reorganising employment. ICI Australian Operations Pty Ltd (t/as Dulux Australia) v Hutton ICI Australian Operations Pty Ltd (t/as Dulux Australia) v Hutton (1993) 47 IR 288 at p (1993) 47 IR 288 at p

296296

The Legal Background to The Legal Background to RedundanciesRedundancies

ConsultationConsultation

The employer is required to consult with an employee The employer is required to consult with an employee and/or their union about the change.and/or their union about the change.

The employee and/or their union have a right to make a The employee and/or their union have a right to make a submission to avert the employee's position from being submission to avert the employee's position from being made redundant.made redundant.

Prior to WorkChoices if an employer failed to genuinely Prior to WorkChoices if an employer failed to genuinely consider the employee’s or unions submissions the consider the employee’s or unions submissions the employee could run an unfair dismissal.employee could run an unfair dismissal.

An employee or union can still run an unfair dismissal if An employee or union can still run an unfair dismissal if the employee or union can demonstrate the the employee or union can demonstrate the redundancy was a sham, that is the redundancy was redundancy was a sham, that is the redundancy was not done for genuine operational reasons.not done for genuine operational reasons.

The Legal Background to The Legal Background to RedundanciesRedundancies

NoticeNotice

Notice is intended to provide the employee with Notice is intended to provide the employee with an opportunity to adjust to the change, an opportunity to adjust to the change, referred to in Macken, referred to in Macken,

McCarry & Sappideen., The Law of Employment, LBC, 4McCarry & Sappideen., The Law of Employment, LBC, 4thth ed at p 184 ed at p 184

As von Doussa J stated in As von Doussa J stated in Sinclair v Anthony Sinclair v Anthony Smith and Associates Pty Ltd Smith and Associates Pty Ltd 1 December 1995 1 December 1995 unreported: unreported:

[it is to allow time for the employee to deal with [it is to allow time for the employee to deal with the emotional family and domestic stresses likely the emotional family and domestic stresses likely to descend upon them when the employment is to descend upon them when the employment is brought to an end].brought to an end].

The Legal Background to The Legal Background to RedundanciesRedundancies

Severance PaymentsSeverance Payments

Severance payments are intended to Severance payments are intended to compensate the employee for: compensate the employee for: Non- transferable creditsNon- transferable creditsInconvenience; and Inconvenience; and hardship imposed on employees as a hardship imposed on employees as a result of the loss of the employment result of the loss of the employment through no fault of their own. through no fault of their own. Termination Change and Termination Change and

Redundancy Case Redundancy Case (1984) 8 IR 34 at p 331 referred to in Macken, McCarry & Sappideen., The Law of Employment, (1984) 8 IR 34 at p 331 referred to in Macken, McCarry & Sappideen., The Law of Employment, LBC, 4LBC, 4thth ed at p 184 ed at p 184

Severance PaymentsSeverance Payments Employees do not have a general right to Employees do not have a general right to

severance payments unless they are set severance payments unless they are set out in:out in: Statute;Statute; An Award;An Award; An Enterprise/Collective Agreement; orAn Enterprise/Collective Agreement; or Your Contract of Employment/AWA/ITEAsYour Contract of Employment/AWA/ITEAs

The Legal Background to The Legal Background to RedundanciesRedundancies

The Legal Background to The Legal Background to RedundanciesRedundancies

Severance RightsSeverance Rights

Consequently it is through peak bodies Consequently it is through peak bodies such as Trades and Labor Councils at state such as Trades and Labor Councils at state and territorial level and the Australian and territorial level and the Australian Council of Trade Unions at a national level Council of Trade Unions at a national level who ran test cases before the Industrial who ran test cases before the Industrial Commissions in the relevant jurisdictions Commissions in the relevant jurisdictions that were successful in establishing that were successful in establishing severance scales in awards.severance scales in awards.

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Merrill Lynch Merrill Lynch

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Deloitte Touche TohmatsuDeloitte Touche Tohmatsu

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CFMEUCFMEU

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Higher EducationHigher Education

Questions ?Questions ?