A tiger with no teeth: Genuine redundancy and reasonable redeployment under the 'fair work act'

In the Fair Work Bill's second reading speech, Julia Gillard berated the Work Choices' philosophy of 'making your own way in the world without the comfort of mateship, without the protections afforded by a compassionate society, against odds deliberately stacked against you'. She vowed that the Fair Work Act 2009 would bring more compassion and fairness than Work Choices. On its face, the new definition of genuine redundancy in the Fair Work Act does appear to bring more compassion and fairness by exposing employers to liability if a worker is made redundant in circumstances where it would have been reasonable for the redundant employee to have been redeployed. However, the reality is quite different. The new law, as it has been applied by Fair Work Australia (FWA), allows employers to ignore redeployment considerations except where the possible alternative position is almost identical from the original position. The new law also allows employers to consider redeployment in isolation without communicating their thoughts to the employee. There are no statutory guidelines about what factors are relevant to the new 'reasonable redeployment' test, leaving individual members of FWA to apply the test on an ad hoc basis. This paper will argue that all of these factors lead to the result that the real outcomes under the new provisions are substantially similar to the old outcomes under Work Choices, despite claims of a new approach.