Guide 2 of 5 · Staff
Redundancy and genuine redundancy after a restructure
Rests on: section 389 of the Fair Work Act 2009, as the Fair Work Commission explains it.
Section 389 of the Fair Work Act counts a dismissal as a genuine redundancy when two things are true: changes in the operational requirements of the employer’s enterprise mean it “no longer required the person’s job to be performed by anyone”, and the employer has met any consultation duty set by a modern award or enterprise agreement that applied to the job. Even then, the dismissal is not a genuine redundancy if redeploying the person within the employer’s enterprise, or an associated entity’s, would have been reasonable.
General information about how the law defines a genuine redundancy. It does not assess any person’s job or dismissal: the Fair Work Commission decides those questions when a claim is made, and the Fair Work Ombudsman says it cannot decide whether a redundancy is genuine, though it gives information about entitlements such as redundancy pay.
01 The section, in the Act’s words
“(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Fair Work Act 2009, section 389, Federal Register of Legislation, compilation of 7 July 2026
02 Three questions the section asks
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Is the job still needed by anyone?
The Fair Work Ombudsman lists the business changes that can make a job redundant: new technology that lets a machine do the work, a slowdown in sales or production, closing down, relocating interstate or overseas, and restructuring or reorganising, including after a merger or takeover. It also says that where the employer still needs someone to do the job, the dismissal is not a genuine redundancy.
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Did the award or agreement require consultation, and was it done?
Paragraph (1)(b) points to the consultation obligation in the modern award or enterprise agreement that applied to the employment. The steps those clauses generally set out are in the guide to consulting staff about major change.
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Could the person reasonably have been redeployed?
Subsection (2) looks beyond the role that ended, to the employer’s whole enterprise and to the enterprises of its associated entities. If redeployment within either would have been reasonable in all the circumstances, the dismissal is not a genuine redundancy.
03 Why the label matters: the unfair dismissal gate
The Fair Work Commission explains that no unfair dismissal application can be made where the dismissal was a case of genuine redundancy. When an employee does apply and the employer believes the redundancy was genuine, the employer may raise a jurisdictional objection. If the employer proves the requirements of section 389 were met, the Commission has no power to hear the claim; if they were not met, the Commission goes on to decide whether the dismissal was unfair.
04 Redundancy pay under the National Employment Standards
Section 119 of the Fair Work Act entitles an employee to redundancy pay when the employment is ended at the employer’s initiative because it “no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour”. The entitlement also arises when employment ends because the employer is insolvent or bankrupt. The amount is the pay for a set number of weeks at the employee’s base rate for ordinary hours, worked out from this table in section 119(2).
| Continuous service with the employer on termination | Redundancy pay period |
|---|---|
| At least 1 year but less than 2 years | 4 weeks |
| At least 2 years but less than 3 years | 6 weeks |
| At least 3 years but less than 4 years | 7 weeks |
| At least 4 years but less than 5 years | 8 weeks |
| At least 5 years but less than 6 years | 10 weeks |
| At least 6 years but less than 7 years | 11 weeks |
| At least 7 years but less than 8 years | 13 weeks |
| At least 8 years but less than 9 years | 14 weeks |
| At least 9 years but less than 10 years | 16 weeks |
| At least 10 years | 12 weeks |
The last row is the Act’s own figure: 12 weeks at 10 years or more. Periods as a casual employee do not count as continuous service for this section.
Section 121 switches the entitlement off where the employee’s continuous service is less than 12 months, or where the employer is a small business employer, though subsection (4) brings it back for some small business employers that are bankrupt or in liquidation. Section 123 also leaves some employees out altogether, including casual employees, employees engaged for a specified period, task or season, and employees dismissed for serious misconduct. Section 122 removes it on some transfers of employment: where the employee’s service with the first employer counts as service with the second, and where the employee rejects an offer from another employer that is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, their terms immediately before the termination, recognises their service with the first employer, and would have been a transfer of employment had they accepted it. The Fair Work Commission may order some redundancy pay where that second rule operates unfairly, and a modern award may specify other situations in which the entitlement does not apply. Under section 120, an employer that obtains other acceptable employment for the employee, or cannot pay, may apply to the Fair Work Commission to have the amount reduced, possibly to nil.
05 When 15 or more jobs go
A restructure that ends 15 or more jobs can bring a notice duty of its own. Under section 530, “If an employer decides to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons”, it must give written notice to Centrelink. Section 534 leaves some employees outside this part of the Act, including casual employees, employees engaged for a specified period, task or season, and employees dismissed for serious misconduct.
- What it says. The reasons for the dismissals, the number and categories of employees likely to be affected, and when or over what period the dismissals will happen.
- When it is given. “As soon as practicable after making the decision” and “before dismissing an employee in accordance with the decision.”
- What follows if it is not. The employer must not dismiss an employee under the decision until it has complied with the section.
Section 531 adds a duty to unions: the Fair Work Commission may make orders where the employer could reasonably be expected to have known, when it made the decision, that one or more of the employees to be dismissed were members of a registered employee association, and has not both notified each association entitled to represent them (of the proposed dismissals and the reasons for them, the number and categories of employees likely to be affected, and when or over what period the dismissals will happen) and given it an opportunity to consult on measures to avert or minimise the dismissals and to mitigate their adverse effects, each as soon as practicable after the decision and before any dismissal under it.