Australia: Can a change in required skills and competencies make an existent role redundant?


The Full Bench of the Fair Work Commission has recently concluded that where an employer wants to increase the skill level of a particular role for operational based reasons, it may do so by making the existing position redundant and replacing it with a new position that meets the businesses operational needs. The Commission in its decision has made it clear that this should only occur where it would be unreasonable for the existing employee to undertake the further required training.


In Mackay Taxi Holdings v Wilson [2014] FWCFB 1043, the employer undertook a review of its business operational needs and determined that it needed to increase the capacity of the administration and the new role would require the person to have bookkeeping/accounting responsibilities and a Certificate IV in Bookkeeping. Ultimately it meant that the existing administration position would no longer be required.

The existing employee did not have these qualifications and to provide such training would take a minimum period of 12 months and require a monetary outlay that the business could not afford at the time. The employer also did not have confidence that the employee would complete the training. Based on these considerations the employer did not consider it reasonable to retrain the employee. The employer notified the employee that her position was redundant on the basis that she could no longer perform the duties required by the higher level position. The employer advertised the new position and allowed the employee to apply for it. A more experienced person applied for and was given the new position.

The employee subsequently filed an unfair dismissal claim against her employer.


The Applicant submitted to the Commission that the redundancy was not a genuine redundancy because 70% of the duties carried out in the current position would still be required in the new position. The Applicant further submitted that with the support of the company's accounts team and undertaking the formal training, she could have performed the new position to a high standard.

The Respondent however submitted that the board of the organisation had determined that the business needed restructuring with a view to increasing the capacity of the administration function at a higher level. It was therefore determined that there would not be sufficient work to keep a qualified bookkeeper and an administrator occupied full time resulting in the decision that the existing administrative position would no longer be required.

Commissioner Booth at first instance was not convinced that the changes instituted by the Respondent resulted in a genuine redundancy. Commissioner Booth concluded that the changes were made to a continuing and existing role which would not satisfy that statutory definition of redundancy which requires that the job is no longer required to be performed by anybody.


The Respondent upon appeal claimed that Commissioner Booth had erred in the conclusion that the changes were to an existing and continuing role. The Respondent submitted that the new requirement of higher qualifications was in fact required to give effect to new higher level duties making up the foundation of the new job and not mere add-ons to the existing role.

The Full Bench agreed with the above submissions and rejected the first instance decision. The Full Bench held that the requirement for a formal qualification was not a mere add-on but rather reflective of operational changes which gave effect to a requirement for new and higher level duties required to be carried out by an appropriate qualified bookkeeper.

In arriving at this decision, the Full Bench expressed the view that the question is not whether the original duties or tasks continue to be required to be performed, but rather that there are operational-driven changes to the position which would result in the job previously performed by the applicant no longer existing. In this regard the Full Bench quoted with approval, a passage from a decision of Hamberger SDP in Kekeris and A,. Hartrodt Australia Pty Ltd [2010] FWA 674 :

"When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of the new position in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes it clear that it can still be a 'genuine redundancy' where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists."


This decision provides a useful benchmark for employers when making operational changes to their business and considering whether to make a position redundant or not.

When employers are proposing operational changes which affect the position of an existing employee, they should give consideration as to whether, in line with their business interests, they can reasonably justify retraining or up skilling the existing employee.

As demonstrated in this case, the time and cost required to retrain an employee will be significant factors for consideration. A failure to genuinely consider retraining an existing employee may be viewed adversely by the Fair Work Commission as indicative of the employer's motives, and may affect their prospects of successfully resisting an unfair dismissal claim.

For further information please contact:

Richard Ottley, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.