33.
of Energy and Minerals[1], it is an employer's "prerogative". In the full passage from which this expression emerges, his Honour said[2]:
"[I]t is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions."
Of course, it is no technical legal answer to a contention that adverse action – in the form of dismissal or the like – has taken place in contravention of s 340, to submit that the defence of genuine redundancy is made out. That is a defence to a claim of unfair dismissal; it is not a defence for the purposes of Div 3 of Pt 3-1 of the FWA. But at a practical level, and very much generally speaking, an employer who can demonstrate that a dismissal took place "because of changes in the operational requirements of the employer's enterprise" which resulted in a relevant job being no longer required, to use the language of s 389, should thereby be capable of displacing the presumption arising under s 361 of the FWA in a case where a contravention of s 340 is alleged. The foregoing might not be applicable in a case where some employees are rendered redundant, and others not, and the process for selecting employees is unrelated to the circumstances of redundancy[3]. But where, as here, all employees of a division are rendered redundant, the general observation remains valid. Such a conclusion ensures that the FWA gives effect to "harmonious goals"[4].
Consistently with the foregoing, a distinction has traditionally been drawn by courts between the operative or immediate reason for taking adverse action as against a merely contributing factor or factors for undertaking such conduct. Section 340 is concerned with the former reason for acting and not the latter. Thus,
- ↑ (1995) 60 IR 304 at 308.
- ↑ (1995) 60 IR 304 at 308. See also ICI Australia Operations Pty Ltd v Hutton (1993) 47 IR 288 at 296–297 per Bauer, Hill and Peterson JJ; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520–521 per Burchett J; Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 332–333 per Beazley J; Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 111 IR 241 at 269–275 [70]–[81] per Moore J; Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 401405 [33]–[44] per Spender, Dowsett and Allsop JJ.
- ↑ Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum at 247 [1553].
- ↑ Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ, citing Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.
