Pitfalls of Picking the Wrong Redundancy

The Australian Public Service is at the forefront of the new government’s search for savings. The Coalition announced before the election it would significantly reduce the size of the federal bureaucracy. Public servants and their managers will need to be aware of the ways in which these savings can be sought with redundancy.

Excess to Requirements

Section 29(3)(a) of the Public Service Act says an employee can be terminated if they are ”excess to the requirements of the agency”. An agency is either a department, an executive agency or a statutory agency. The act does not provide a definition of ”excess to requirements”, though a brief review of individual agencies’ enterprise agreements shows they define excess to requirements in much the same terms. Broadly, they say:

An employee may be declared excess if:

  • there is a greater number of employees at the employee’s regular level than is necessary for the efficient and economical working of the department; or
  • their services cannot be effectively used because of technological or other changes in work methods, or other organisational changes in the department; or
  • the employee is unwilling to move to or perform duties at another locality where their usual duties are reassigned, and the secretary determines that these provisions will apply to that employee.

The Senior Executive Service

In relation to SES employees, there is also section 37 of the act:

… an agency head may give a notice in writing to an SES employee in the agency, stating that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice.

Relevantly:

… if the employee retires within the specified period, by notice in writing to the agency head: (a) the employee is entitled to be paid the specified amount; and (b) the employee is taken, for all purposes, to have retired involuntarily from the APS.

The concept of a genuine redundancy is set out in the Fair Work Act. Under section 119, an employee is entitled to redundancy pay if their employment is terminated at the employer’s initiative because the employer no longer needs the employee’s job to be done by anyone, except where this is due to the ordinary and customary turnover of labour. Additionally, section 389(1)(a) tells us that a genuine redundancy exists where:

… 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.

Genuine Redundancy

Section 389(2)(a) tells us that 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:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

The meaning of section 389(2) was considered by the full bench of Federal Court in Ulan Coal Mines v Honeysett and Ors, where the court essentially found that if, at the time of the dismissal, there was a job to which the employee could be redeployed, whether a person should be redeployed depended on several factors. They include: the nature of any available position; the qualifications needed to perform the job; the employee’s skills, qualifications and experience; the location of the job in relation to the employee’s residence; and the remuneration that is offered.

For public servants, the question of whether other federal government agencies could be considered ”associated entities” for the purposes of the Fair Work Act was considered by the Fair Work Commission in Noronha v Department of Veterans’ Affairs. After some discussion of the meaning of associated entities under section 50AAA of the Corporations Act, the commission found ”that Commonwealth government departments would be considered ‘associated entities’ ” and that ”the dismissal of a Commonwealth government employee in one department may not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within another Commonwealth government department”.

It is worth noting that, since about 1999, public servants have not been employed in a particular ”office”. Rather, they are employed at ”a level”, such as APS1 to APS6. That is, subject to the obvious limits in relation to certain employment tasks, each and every public servant at a particular level was seen to be interchangeable with every other public servant employed at the same level in the agency. There have been cases where a person has been moved from a job they enjoy at a certain level to a job they, at the very least, might not enjoy at the same level. This is perfectly legal. They are still being employed at that level regardless of the fact that their day-to-day job tasks and functions may have substantially changed. This, then, suggests it should be easier to redeploy a public servant from a particular level in one branch or agency to another branch or agency at the same level. Coupling this with the discussion in Noronha would suggest that an agency or department would need to go to some lengths to show that any termination of a public service employee was a genuine redundancy.

Whether someone is ”excess to requirements” seems an easier hurdle to jump and will be considered in more detail next month in part two of this article, dealing with the tax consequences of ”voluntary redundancies” and being found to be ”excess to requirements”.

First published in the Canberra Times’ Public Sector Informant.

By John Wilson, Legal Director, Employment Law.