Is your role change lawful ?
In the current economic environment several workplaces are restructuring, leading to variations of employees’ positions and duties. An important reminder for both employees and employers is that not every workplace restructure triggers redundancy entitlements, and not every “role change” is a lawful exercise of a management power. The question for employees is can an employer change your role and not trigger a redundancy and employers are obliged to make restructuring and role changes lawful.
The key test comes from s 389 of the Fair Work Act 2009 which prescribes three key limbs for determining whether genuine redundancy has occurred.
- The job must no longer be required by the business
- Consultation obligations must have been complied with; and
- Redeployment must not have been reasonable in all circumstances.
Recent decisions in the High Court and the Fair Work Commission have raised the bar on the steps employers must take to comply with these requirements.
Is it the Duties or the Position That Count?
The most restructure disputes, the key question is simple: does the employee’s role no longer exist or have the duties merely changed?
The Courts and the Fair Work Commission (FWC) define a “job” as “a collection of functions, duties and responsibilities entrusted to a particular employee as part of the employer’s organisational structure.” The critical point is that whilst individual duties may be redistributed across other employees or absorbed into a new role, if the original position no longer exists, it is considered redundant. The reverse is also true: if the same job continues to be performed by someone else, even under a different title, there is no redundancy.
In Commissioner of Taxation v Baya Casal, the Court reminded us that the focus must be on the attributes of the position: its scope, seniority, reporting structure, decision-making authority and the nature of the work, rather than the individual tasks performed and whether they survive elsewhere in the business. The Court will ask whether “the duties have so changed that for all practical purposes the original role no longer exists.” Even where as much of 70% of the old duties carry over into a new role, a genuine redundancy can occur if the new role has a substantially different character or demands different qualifications.
Why this matters?
- For employers: Relying on a broad contractual variation clause to impose a fundamentally different role without following a redundancy process is a significant legal risk. If the new role’s scope, seniority or qualification profile materially differs from the original, a genuine redundancy may already have occurred. Failure by an employer to pay entitlements or conduct a proper process can expose them to unfair dismissal claims, general protections liability or breach of contract proceedings.
- For employees: Continued employment in a materially changed role does not extinguish your redundancy entitlements. If the duties have shifted so far that the original role no longer exists in substance, employees have well-established pathways to assert entitlements, whether through negotiation, Fair Work Commission proceedings or court action. Seeking legal advice about your entitlements before accepting a new position description is recommended.
What does Redeployment mean?
Until recently, the redeployment question under s 389 was largely a matter of checking whether suitable vacancies existed within the employer’s business. The decision in Helensburgh Coal Pty Ltd v Bartley has fundamentally altered that analysis.
The Court will look more broadly at whether, in all circumstances, redeployment was a reasonable option. Employers who cannot demonstrate they genuinely considered it will be exposed. Simply pointing to an absence of vacancies is no longer enough.
A compliant redundancy process must now include documented consideration of whether the workforce could reasonably have been reorganized, including factors such as contractor substitution to retain the affected employee. Internal restructure documentation and consultation records need to reflect this analysis. Employers who cannot demonstrate that inquiry face a real risk of a finding that a dismissal was not a genuine redundancy, opening the door to an unfair dismissal claim.
Common Consultation Failures
The second limb of s 389 requires an employer to have complied with any consultation obligation in any applicable modern award or enterprise agreement. Most employees covered by a modern award are covered by a standard “major workplace change” consultation clause. Failure to follow this clause is fatal to a genuine redundancy defence, even where the case for operations changes is sound and redeployment was not possible. The FWC consistently distinguishes between real consultation and mere notification.
A frequent mistake is timing. The duty to consult is triggered when the employer makes a definite decision to introduce a significant change, not when it decides to issue redundancy notices. If restructuring decisions are minuted at a management meeting, consultation obligations may already have kicked in, regardless of whether letters have gone out. Employees on leave must also be consulted and kept informed about changes that may affect their roles.
Important considerations
- A genuine commercial reason for restructuring itself will not protect employers from unfair dismissal if consultation was inadequate. The practical safeguards are straightforward: check which modern award or enterprise agreement applies, identify and follow the relevant consultation clause, commence consultation early, hold individual meetings and document every step in contemporaneous records. The cost of getting this right is far lower than the cost of defending an unfair dismissal claim.
- For employees, red flags in a redundancy process include a rushed timeline and simply being handed a letter rather than an invitation to genuine conversation about alternatives. That procedural failure may be the basis of a successful unfair dismissal claim, independently of whether the underlying business decision was sound. Importantly, there is a 21-day time limit from the date of dismissal to lodge an unfair dismissal application with the FWC, so early legal advice is essential.
Key takeaways
If a redundancy is found to be ingenuine, employers can be exposed to unfair dismissal applications, a constructive dismissal or general protections claim, a breach of contract action, or a claim for unpaid redundancy entitlements under s 119 of the Fair Work Act. For employer with 15 or more employees redundancy claims can see a business paying out between 4 and 16 weeks’ pay to a dismissed employee, determined by length of service.
Whether you are an employer trying to restructure lawfully or an employee uncertain whether your “position change” amounts to a redundancy, the legal framework is complex, the stakes are significant, and the time limits are strict. KPA Lawyers advises both employers and employees across Victoria on redundancy, restructuring and unfair dismissal matters. We help employers design and document robust processes, and support employees to understand their rights and recover entitlements when processes are not followed.
If you have any questions concerning redundancy and unfair dismissal or any other employment law issue, our Employment Law and Litigation team would be pleased to assist you.
1 Ulan Coal Mines Limited v Howarth and others FWAFB 3488.
2 [2026] FCAFC 11.
3 Hodgson v Amcor Ltd [2012] VSC 94. [2026] FCAFC 11.
4 Mackay Taxi Holdings Ltd v Wilson [2014] FWCFB 1043.
