Redundancy in the Australian Public Service — Some Critical Reflections
| Date | 01 September 2013 |
| Published date | 01 September 2013 |
| DOI | 10.22145/flr.41.3.6 |
| Subject Matter | Article |
REDUNDANCY IN THE AUSTRALIAN PUBLIC SERVICE
— SOME CRITICAL REFLECTIONS
Cameron Roles*
ABSTRACT
This article critically examines the law concerning dismissal on grounds of redundancy
as it applies to the Australian Public Service ('APS'). Such an examination is timely,
given the newly elected Coalition government's stated intention to reduce the APS by
12 000 employees through natural attrition.
The article argues that a reduction of 12 000 employees through natural attrition
alone is unlikely, and that redundancies are almost inevitable. Against this backdrop,
the article considers recent legislative developments concerning dismissal on grounds
of redundancy. Its focus is the genuine redundancy exclusi on contained in s 389 of the
Fair Work Act 2009 (Cth) ('FW Act') and its applica tion to APS employment. The
genuine redundancy exclusion precludes unfair dismissal claims if the redundancy is
genuine, the employer complies with any consultation obligations in a modern award
or enterprise agreement and it would not have been re asonable in all the circumstances
to redeploy the affected employee within the employer's enterprise or that of an
associated entity.
The article argues that, prior to the FW Act, redundancy obligations were
predominantly d ealt with in collective agreements, and d id not require consultations
or redeployment of redundant employees beyond the individual agency. However the
FW Act fundamentall y changed the law in this area. The article contends that a failure
to comply with consultation obligations in an agency enterprise agreement will
increase the prospects of a dismissal being found to be unfair. In the APS this is
problematic, given the convoluted nature of many consultation clauses in enterprise
agreements. The article also argues that the redeployment obligati ons in s 389(2) are
extremely broad and, contrary to past practice under the Public Service Act 1999 (Cth)
('PS Act'), encompass redeployment across the APS. The obligation to redeploy across
the APS creates tensions in the law between the provisions of the FW Act and the
devolution of managerial powers under the PS Act.
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* Lecturer, ANU College of Law. I wish to thank my colleagues Ms Pauline Thai and
Emeritus Professor Dennis Pearce AO for their helpful comments on earlier drafts of this
article. I also wish to thank and acknowledge the helpful suggestions for improvement
made by the anonymous referees. Thanks must also go to Alice Crawford for valuable
research assistance in the preparation of this article.
526 Federal Law Review Volume 41
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The article concludes by calling for reform of the law which would address these
tensions. It is submitted that any reforms should first clarify whether, as a matter of
policy, the Commonwealth wishes to permit redeployment across the APS, or confine
it to the level of each individual agency. Options for reform are suggested which
would achieve either policy outcome.
I INTRODUCTION
The recent election of a Coalition (Liberal/National party) government in Austra lia is
certain to lead to reductions in the wor kforce of the Australian Public Service ('APS'). It
is also very likely to lead to redundancies, for two reasons. The first is a Coalition
commitment, made during its last days in opposition, and at its campaign launch, in
which the Coalition pledged to re duce the public service by 12 000 employees 'through
natural attrition because we don't need 2 0 000 more public servants now than in 2007.'
1
The second is a major shake-up of the A PS, announced by the Prime M inister within a
few hours of the swearing in of his new government, which aimed to 'simplify the
management of government business, create clear lines of accountability and ensure
that departments deliver on the government's key priorities.'
2
Under the changes
departments and agencies have been abolished, bro ken up or absorbed, increasin g the
likelihood of redundancies.
3
Key changes include the abolition of the Department of
Regional Australia, Local Government, Arts and Sport, along with t he Department of
Resources, Energy and Tourism, with the functions of each being allocated to other
departments. AusAID has been merged with the Department of Foreign Affairs and
Trade. Policy responsibility for matters concerning customs and border control has
been transferred from the Attorney -General’s portfolio to the newly created
Department of Immigration and Border Protection, with the Australian Customs and
Border Protection Service also reporting to the Minister for Immigration and Border
Protection. A new Department of Social Services has been created which takes over
some of the responsibilities previously carried out by the Department of Families,
Housing, Community Services and Indigenous Affairs, but with additional
responsibility for aged care, multicultural affairs and settlements, income support and
programs for persons with a disability. The former Department of Education,
Employment and Workplace Relations has been split into two departments: Education
and E mployment. A raft of smaller departmental changes completes the shake-up of
the bureaucracy.
Reducing the APS by 12 000 through natural attrition was always going to be
difficult, given previous rounds of efficiency dividends and consequential voluntary
redundancies under Labor in 2011–12.
4
Likewise the a bolition of two depa rtments and
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1
Tony Abbott, 'Address to the 2013 Federal Coalition Campaign Launch' (Speech deli vered
at the Federal Coalition Campaign Launch, Brisbane, 25 August 2013).
2
Tony Abbott, 'The Coalition Will Restore Strong, Stable and Accountable Government'
(Media Release, 18 September 2013).
3
Details of changes to the APS can be found in the Administrative Arrangements Order:
Commonwealth, Administrative Arrangements Order, 18 September 2013.
4
See Cameron Roles, Michael O'Donnell and Peter Fairbrother, 'The Aftermath of the Global
Financial Crisis and Union Strategies in the Australian Public Service' (2012) 67 (4) Relations
Industrielles/Industrial Relations 633, 640.
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