Beyond Compliance: The Construction Culture Standard

Beyond Compliance: The Construction Culture Standard

by | Apr 4, 2026 | C1: Commitment, C2: Capability, C3: Competency, C4: Culture, Compliance, Diversity, inclusion and equity, Psychosocial hazards, Sexual harassment, Workplace wellbeing

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Beyond Compliance: The Construction Culture Standard

money changing hands

A few years ago a Construction Industry Culture Taskforce was established via a collaboration between the Australian Constructors Association and the NSW and Victorian Governments with the help of a few academic experts. That has led to the creation of a Culture Standard for the industry with the aim of improving the character of the industry relative to mental health, gender equality and life balance 

Background

As the construction industry faces mounting pressure to deliver critical infrastructure, it has reached a crossroads. Issues like chronic overwork, high suicide rates, and a severe lack of diversity are no longer just “part of the job” – they are systemic risks costing the Australian economy approximately $8 billion annually.

That’s why the Construction Industry Culture Taskforce (the CICT) was formed – to look at what the key barriers are that need to be overcome to create a better industry culture and to devise ways to overcome these barriers.

That work undertaken by the CICT has led to the release of the 2025 Culture Standard for the Construction Industry. This framework is designed to move the industry from “whispering” about health to making it a core pillar of project success.

 What is the Culture Standard?

The Culture Standard is a procurement-based framework that establishes clear requirements for how construction projects should be managed to prioritise people. It is built upon three interrelated pillars:

  • Wellbeing: Prioritising mental health through stigma-free support programs and schedules that manage workload pressures. 

  • Time for Life: Ensuring workers have adequate rest by targeting a 5-day work week (5 days in 7), capping hours at 50–55 per week, and providing consecutive days off 

  • Inclusion & Diversity: Creating workplaces free from offensive material, providing proper amenities, and setting transparent targets to increase female participation and close gender pay gaps.

Why was it developed?

The industry’s current performance in these areas is among the poorest in Australia. Key drivers for the Standard include:

  • The Wellbeing Crisis: Construction workers face suicide rates double the national average, with 75% reporting high stress.

  • The Diversity Gap: As the most male-dominated industry in the country, construction is missing out on a massive talent pool during an acute labor shortage.

  • The Productivity Myth: Research from CICT pilot projects proved that reducing hours does not harm productivity; instead, a rested workforce is safer and more efficient.

How will it be used?

The CICT’s goal is for the Standard to become a mandatory part of public sector procurement and the Australian Constructors Association has been lobbying governments to adopt it for that purpose. This would mean that:

  • Clients (government agencies) would prioritise the Standard in requests for tenders.
  • Contractors would need to demonstrate exactly how they will meet the Standard’s requirements as part of their bid.
  • Compliance would be monitored throughout the project life cycle, from delivery to handover.

How to implement the Culture Standard

Successful implementation requires a shift in how projects are planned and led:

  • Project Scheduling: Instead of 6- or 7-day site operations being the default for workers, schedules must be built around a 5-in-7 model with “healthy programming” that allows for recovery.

  • Flexibility Plans: Each project must develop and promote a specific “Project Flexibility Plan” to support workers with personal and family commitments.

  • Leadership Commitment: Leaders must move beyond “safety banter” and proactively advocate for the Standard, ensuring mental health first aiders are available and that gender-biased hiring is eliminated.

How this interacts with positive duties

In recent years, new positive duties have been legislated federally and by each State and Territory to eliminate or reduce risks from psychosocial hazards. Many of these hazards relate directly to the three pillars in the standard (wellbeing, time for life and inclusion and diversity).

A positive duty to prevent sexual harassment and gender-based behaviour and related victimisation and workplace environmental factors is also in place under both federal land State legislation.

So there are already multiple statutory duties on employers and others to address the issues that the Culture Standard has been developed to fix.

Other related duties

In addition to those positive duties, organisations with 100 or more employees have to lodge annual returns on Gender Equality/Pay Gaps with the Workplace Gender Equality Agency and this year, organisations with 500 or more employees have to provide plans detailing targets and action plans for improvement against these targets.

The WGEA publishes information on every respondents’ pay gap each year.

Our thoughts

We have been providing HR service to construction businesses for over 25 years and we are well aware of the challenges that the industry has in each of the 3 pillars in the Culture Standard.

We believe that the right approach to addressing the positive duties to eliminate or reduce risks from psychosocial hazards and to prevent sexual harassment and gender-based behaviour will go a long way towards addressing the matters contained in the Culture Standard.

Mostly, it requires a fundamental change in the way that industry stakeholders think and act. That starts with government and major (head) contractors in how they design work and engage others (eg sub-contractors and other service providers). Educating them and creating a psychologically safe environment for them to engage in the conversation and be part of the solution is critical.

How we can help

Ridgeline HR has been helping organisations including many construction businesses with compliance and cultural matters since 2000.

We have a strong record of working effectively with Government and with industry associations as well as in conducting compliance and cultural assessments of client organisations.

We can help you to design and implement an integrated cultural change program that will address your obligations as set out above and will help you to demonstrate that your organisation meets the Culture Standard. 

Our Practice Leader, Peter Maguire, is available to facilitate discussions with your management group or your Safety or Consultative Committee to work through these questions and tailor the right approach for your business and your people.  If you would like to know more about this, please let us know via the Contact Form below.

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

TELL US WHAT YOU NEED HELP WITH

Changing gears on consultation

Changing gears on consultation

by | Mar 31, 2026 | C1: Commitment, C2: Capability, C3: Competency, Compliance, Fair Work, Psychosocial hazards, Workplace wellbeing

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Changing gears on consultation

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We are long used to having obligations to consult employees on matters that affect them under Workplace Health and Safety laws and under modern awards and in other jurisdictions but, in recent years, the focus on consultation has intensified and has become more complex than employers have been used to. Plus, with the introduction of positive duties, the lines are getting a bit blurred between jurisdictions. So what does that all mean going forward?

Our traditional consultation obligations

For decades, awards have required employers to consult employees on matters that affect them like restructures and introduction of new technology and, more recently, a specific obligation to consult employees about variations to hours of work has been introduced.

Similarly, Workplace Health and Safety laws and regulations and codes of practice have imposed obligations on “Persons Conducting a Business or Undertaking” to consult workers about matters that might affect their health and safety.

These duties were largely interpreted as meaning that it is necessary to:

  1. Inform people about a proposed change, why it is happening and what the potential effects on people are
  2. Recognise any representative that employees might have like a Health and Safety Representative or a Union Representative
  3. Listen to what the employees/workers and/or their representatives had to say and consider their views
  4. Having done so, make a final decision and advise people of the outcome and reasons for it.

The duties also extended to responding to any concerns that people or their representatives might raise via WHS Issue Resolution Procedures or workplace relations dispute settlement procedures.

So what has changed? 

In short …. lots.

Fair Work Reforms

In recent years, the following changes have been made by the current federal Labor government:

  • In relation to requests for flexible working arrangements for designated eligible employees under s65 of the Fair Work Act 2009 and for requests for extension of parental leave beyond 12 months, new consultation obligations and a passage to the Fair Work Commission for determination in the event of a dispute
  • Similar obligations re consultation and avenues for dispute resolution in respect to the new FWC jurisdiction regarding “the right to disconnect”
  • Increased scrutiny of the genuineness of consultation in enterprise agreement making, especially in relation to employees properly understanding the effects of approving the enterprise agreement (ie how it will affect them) and the employer’s obligation for full disclosure.

Positive Duties 

Essentially, these up the ante on what were already obligations to protect people from risks of injury and illness from sexual harassment and gender-based behaviour and psychosocial hazards.

The positive duties arose from a series of investigations and studies that showed that these risks were common and having serious effects on people’s psychological, emotional and physical wellbeing. Associated with that were ballooning costs in WorkCover claims and escalating demands on systems and resources for treatment of psychological injuries and illnesses.

As a result, we now have much more defined obligations re what we must do protect people from those risks and an increased regulator focus on those areas of risk with additional resources to prosecute them.

The other element is that there is a blurring of the lines in the sense that, with respect to certain matters such as the management of change or issues around sexual harassment (to name a couple), they can be prosecuted in multiple jurisdictions.

The Decisions

Governments make changes and then courts and tribunals decide how they should work.

There have been a number of cases that have been instructive in this regard:

  1. SafeWork NSW intervened in a restructuring program at the University of Technology Sydney that was initiated to reduce costs and involved the potential loss of 150 jobs. On 2 September 2025, a Safe Work Inspector issued a prohibition notice in the belief that UTS workers would be exposed to a “serious and imminent risk of psychological harm” as a result of UTS’s Academic Change Proposal, in contravention of the Work Health and Safety Act and the Work Health and Safety Regulation. They had to pause the process and go through a process of adjustments and convincing SafeWork NSW that they were going through an appropriate process.
  2. At around the same time, the Finance Services Union lodged a dispute with the Fair Work Commission over extensive job cuts at ANZ and the consultation process associated with them putting a similar matter into a different jurisdiction, but with the union making reference to psychosocial hazards around poor change management being in play.
  3. In another case, Westpac was found wanting relative to a request for a flexible working arrangement from an eligible employee under s65 of the Fair Work Act 2009 in that they didn’t have genuine business grounds, they didn’t consult properly (in considering the employee’s compromise proposal) and they didn’t comply with their statutory obligation to respond to the request within 21 days.

What can we learn from this?

There are quite a few takeaways:

  1. Psychosocial hazards are a hot issue for WHS regulators and the positive duty on employers means that you have to be able to show that you are actively managing them and properly consulting people, not just reacting when something happens.
  2. The lines between different jurisdictions are becoming increasingly blurred and people will access the one that they feel offers the best avenue for a win for them as has happened with the WHS pathway in the UTS case and the FWC pathway in the FSU/ANZ case.
  3. Gone are the days when you could just treat consultation as a tick box exercise, rather than as an active, inclusive and genuine consideration with real employee voice and wellbeing components.
  4. When implementing significant change in your business which affects people’s roles or the way that they perform their duties, ensure that you plan and execute the changes carefully, understanding the real effects for people and allowing adequate time and proper consideration of employees’ questions and views.
  5. You should also have due regard for employees’ wellbeing, your consultation obligations under both WHS and workplace relations law (and any other relevant jurisdiction) and how you support people individually and collectively through the change process.
  6. Change is complicated and it is something that you should get professional assistance with from someone who understands the legal obligations in the various jurisdictions and is also adept in communicating with employees and helping the business, managers and people through the process.

One of the key challenges for large employers is how they reintegrate their HR and WHS functions so as to manage relevant matters consistently across jurisdictions and with their management teams and workforce in general. Establishing an ongoing Workplace Consultative Group to deal with these matters collaboratively is a good option and one that is recommended by some regulators.

For smaller businesses, it is how they manage the expectations of multiple jurisdictions in a practical and effective way within their businesses and resources. The focus should be on keeping it simple in process, active in education and communication and having access to professional support to do that and deal fairly and quickly with any issues that arise.

The positive duties also extend consultation obligations to contractors and their employees, so you need to include them as well.

Our Practice Leader, Peter Maguire, is available to facilitate discussions with your management group or your Safety or Consultative Committee to work through these questions and tailor the right approach for your business and your people.  If you would like to know more about this, please let us know via the Contact Form below.

Note: this article was originally published in Timber Trader Magazine.

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

TELL US WHAT YOU NEED HELP WITH

How to deal with Working From Home

How to deal with Working From Home

by | Mar 19, 2026 | C1: Commitment, C2: Capability, C3: Competency, C4: Culture, Compliance, Diversity, Employee Engagement, Hybrid working, inclusion and equity, Psychosocial hazards, Workplace wellbeing

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How to deal with Working From Home

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The Victorian Government has announced an intention to legislate a right to work from home for up to two days per week which will operate effectively from 1 September 2026 and 1 July 2027 for small businesses. What does this mean in reality and what should organisations be doing in preparation for the legal changes?

Is this legislation good?

This legislation is absolutely unnecessary and is solely motivated by an unpopular government desperately trying to garner votes at the upcoming State election.

Victoria transferred its workplace relations powers to the Commonwealth decades ago and matters like this should and are being dealt with in the federal jurisdiction. For example:

  • Certain categories of employees already have statutory rights to request a flexible working arrangement (which can include working from home) and have access to the Fair Work Commission in the event of a dispute with their employer over that request
  • All modern awards have provisions on Individual Flexibility Arrangements and Requests for Flexible Working Arrangements and Facilitative Provisions which provide a variety of negotiable flexible arrangements
  • During COVID lockdowns, modern awards were varied to specifically address the question of working from home through additional flexibilities
  • The Fair Work Commission is currently running a case on model clauses for working from home arrangements 

So the question of working from home arrangements is being comprehensively dealt with in the jurisdiction which should have carriage of it.

The Allan Government is electing to use the Equal Opportunity jurisdiction to pass the legislation  which will just mean that there is an extra jurisdiction that we have to deal with because it will still be part of the Fair Work system too.  

Smart employers are already offering flexible work arrangements including WFH options where they can make that work in practice. Even the Premier acknowledges that “more than a third of workers – including 60 per cent of professionals – regularly work from home”.

Add all of that up and that’s why the legislation is just a bad idea on so many counts.

Existing rights to request flexible working arrangements

Employees who have clocked up 12 months service with an employer already have a statutory right to request a flexible working arrangement which can only be refused on reasonable business grounds if they:

  • are pregnant
  • are the parent, or have responsibility for the care, of a child who is of school age or younger
  • are a carer (within the meaning of the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing family and domestic violence, or
  • are caring for or supporting an immediate family or household member who requires care or support because they are experiencing family and domestic violence.

So a fair slice of your workforce probably already have these rights – just consider:

  • How many of your people are parents with children up to 17 or 18 years old and still at school?
  • How many of your people might have ASD or ADHD or Tourettes or dyslexia or other neurodivergent conditions that could be classified as disabilities? Or other forms of disability?
  • How many fall into one of those other categories?

Admittedly, the request has to be related to the particular attribute that the employee is seeking flexibility for (eg parental or carer requirements).  

But does this existing right mean that this legislation perhaps doesn’t have as big an impact as you thought might be the case?

What are reasonable business grounds for refusal of requests?

According to the Fair Work Ombudsman, what counts as reasonable business grounds for refusing a request for flexible working arrangements will depend on the individual circumstances, including the nature and size of the business, the employee’s role and duties and the requested arrangements. Examples of reasonable business grounds include but are not limited to:

  • cost – the requested arrangements would be too costly for the employer
  • capacity – there’s no capacity to change the working arrangements of other employees to accommodate the request
  • practicality – it would be impractical to change the working arrangements of other employees, or take on new employees, to accommodate the request
  • inefficiency or impact – the requested arrangement would be likely to result in significant loss in efficiency or productivity, or have a significant negative impact on customer service.

We have yet to see the detail of the proposed legislation and it doesn’t sound like we will for a few months yet but hopefully it will not be inconsistent with what we understand to be reasonable business grounds. 

And if the job really can’t be done from home?

There are lots of jobs that can’t be done from home and there are going to be people who resent the fact that others get that flexibility and they can’t have it.

We have already heard the Victorian Police Association flag that they want some compensation for their members because they can’t access that workplace right. We might see that come up as a claim in enterprise agreements.

Think about ways that you might be able to offer this people some flexibility eg an RDO or a 4 day week or flexible starting times  or ….  talk about it. 

What should you be doing?

No doubt, you are hearing from lots of lawyers and consultants that you need to rush off and review your flexible working or WFH polices and procedures.

Before you do that, let’s have a little reality check. We haven’t seen the legislative detail yet but it won’t be long after we do that it takes effect so what can we do now to prepare.

Remember that positive duty to eliminate or reduce risks from psychosocial hazards that legally took effect in Victoria on 1 December 2025?  There are a few hazards that are in play here like, for starters:

  • Change management
  • Support
  • Remote or isolated work
  • Organisational justice

That positive duty means that you need to consider the question of how you ensure that employees are able to competently perform their roles in a psychologically, emotionally and physically safe manner.

So here are some questions for you to think about: 

  1. If you currently have working from home arrangements in place, what is working well and what needs improvement and why (in each case)?
  2. Looking at the various roles in your organisation, are there any that cannot be done from home and why or are there ones where some functions can be but others can’t and why? 
  3. Looking at your workforce, how many of your people already have a statutory right to request a flexible working arrangement?
  4. If you have been insisting on people coming to work rather than working from home, what are the reasonable business grounds that you would be relying on for refusal of a WFH request and would they stand up? That is, are they really reasonable at law? Consider position by position and employee by employee.
  5. If you have people whose jobs simply cannot be done from home, what flexibilities might you be able to offer them so that they feel like you recognise their needs too?
  6. Bearing in mind the real obligations that employers have to properly consult people about matters that affect them under both workplace relations and workplace health and safety law, what consultative processes do you have in place to do that at organisational, team and individual levels and how well do they work?
  7. What internal processes do you have in place for people to raise grievances if they have concerns about your policies or their particular situation and how you are dealing with that and again how well do they work?
  8. How do you integrate your WHF practices into your performance and development management processes?
  9. What support and training and resources do your line managers and supervisors need to effectively play their parts in the process in a psychologically safe way for them?
  10. Then, once you have been through all of these steps and you have seen what the new legislation requires (expected in July), have a look at what you need to do with your policies and procedures.

These are all questions that should have been considered in relation to exisiting rights that workers have – the new legislation just gives us another reason to ask them. 

Our Practice Leader, Peter Maguire, is available to facilitate discussions with your management group or your Safety or Consultative Committee to work through these questions and tailor the right approach for your business and your people.  If you would like to know more about this, please let us know via the Contact Form below.

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

TELL US WHAT YOU NEED HELP WITH

Celebrating Labour Day

Celebrating Labour Day

by | Mar 7, 2026 | C1: Commitment, C2: Capability, C3: Competency, C4: Culture

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Celebrating Labour Day

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In Victoria, Labour Day falls on Monday 9 March 2026 and the long weekend  is full of activities to enjoy with Moomba, the Melbourne F1 Grand Prix and the commencements of the AFL and NRL seasons. So there is lots to do and celebrate ….. but why is it called Labour Day?

The origins

Way back in 1856 (that’s 170 years ago), a group of stonemasons working on the University of Melbourne downed tools and marched to Parliament House with a demand for the introduction of an 8 hours working day citing the mantra “8 hours work. 8 hours recreation and 8 hours rest”.

They won that right and that landmark achievement in workers’ rights is what Labour Day was created to celebrate.

It is an opportune time to reflect on where we are at with workplace rights today and what has shaped where we are at.

WorkChoices and beyond

In 2006, the Howard Government’s WorkChoices legislation took effect and that stripped away guarantees of quite a range of worker entitlements previously provided for under the Workplace Relations Act 1996 and awards.

It was roundly rejected by Australian voters resulting in the Howard-led coalition losing office in the 2007 election and Howard himself losing his seat.

The Rudd Government with Julia Gillard as the Ministers for Employment and Workplace Relations introduced the Fair Work system in 2009 and that still exists with many additions and variations today.

Due to the voter backlash against WorkChoices, subsequent coalition governments have been reluctant to make significant changes to employment laws.

Since the Albanese Government was elected in 2022, we have seen an unprecedented range of changes to the Fair Work Act, modern awards and other employment-related laws and regulations – around 70 changes in the space of 3 years.

These include the right to disconnect, new jurisdictions for the Fair Work Commission, a legislated criminal offence of wage theft, new rights for gig workers, independent contractors and road transport contractors and many other changes.

There is more coming with the move to make superannuation payable by pay period, the increase in parental leave pay to 26 weeks (both coming on 1 July 2026) and the forecast limitation of restraint clauses in employment contracts coming in 2027.  

And there is also the Work From Home provisions in awards to be finalised as well as the Victorian Government’s WFH guarantee to be dealt with. 

The Charter of Employment Rights

One of the effects of the WorkChoices legislation was the mobilisation of people from unions and employers and academia and other fields who were opposed to what the Howard Government was doing in stripping back workers’ rights.

That resulted in the founding of the Australian Institute of Employment Rights which works to promote the recognition and implementation of employment rights in a cooperative industrial relations framework based on the principles and standards of the International Labour Organisation,

That body then created “The Australian Charter of Employment Rights“, a best practice standard of good cooperative workplace relations practice for Australian Workplaces. It sets out 10 fundamental principles on which good industrial relations practice and workplace rights should be based:

  1. Good faith performance
  2. Work with dignity
  3. Freedom from discrimination and harassment
  4. A safe and healthy workplace
  5. Workplace democracy
  6. Union membership and representation
  7. Protection from unfair dismissal
  8. Fair minimum standards
  9. Fairness and balance in industrial bargaining
  10. Effective dispute resolution

If you are in a unionised workplace, this provides a pretty good roadmap on what you should be trying to do to create a collaborative and transparent workplace culture.

We have had the privilege of working with The Australian Institute of Workplace Rights some years ago on a joint program with Investors in People which provided for assessment of organisations against both the Charter of Employment Rights and the Investors in People Standard.  If you would like to know more about this, please let us know via the Contact Form below.

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

TELL US WHAT YOU NEED HELP WITH

Is that redundancy genuine?

Is that redundancy genuine?

by | Feb 2, 2026 | C1: Commitment, C2: Capability, C3: Competency, Fair Work, Redundancy

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Is that redundancy genuine?

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Have you had situations where it has been suggested to you that the best way to deal with “a problem employee” is to make them redundant? Unfortunately, we get asked that question too often. Did you know that there are specific criteria that have to be met for a redundancy to be considered legally genuine? A recent FWC decision illustrates just what this all means.   

The Background

When the Fair Work Act 2009 was developed under then Minister for Employment and Workplace Relations, the Hon Julia Gillard, a key reform that the government wanted to make was to discourage what had become common corporate practice of restructuring to remove unwanted employees rather than affording them the natural justice that they would be entitled to under a performance or behavioural management process.

This resulted in the legal recognition of sham redundancy as a concept and the prescription of specific grounds that had to be satisfied for a redundancy to be genuine, namely:

  • That the role in question is not going to be performed by anyone and
  • That the organisation genuinely considers redeployment opportunities and
  • That the consultation provisions in any applicable industrial instrument (award or enterprise agreement) are complied with.

If all three of those conditions are satisfied, an employee would be excluded from making an unfair dismissal claim.

The case in point

CEVA Logistics initiated a restructure which resulted in an operations supervisor’s position becoming redundant and the occupant of that position was retrenched. The Fair Work Commission found that it was not a genuine redundancy despite accepting that the position was not required for genuine operational reasons. Here is why:

  • Redeployment: there were 18 vacancies in the organisation (3 of which were in her home state) yet she wasn’t advised of any of them
  • Consultation: this includes an obligation to properly consult the employee about the effects of the redundancy (ie on her employment) and measures to mitigate the adverse effects of the change on her and the Commission found that the employer failed to do this.

It appears that the organisation did not put forward any of the vacancies as redeployment options in the belief that none of them were suitable because, in their view, the surplus employee didn’t have the skills required and/or would have to take a payout and/or would have to relocate interstate. The Commissioner rejected all of those as grounds for not advising the employee of the available vacancies and genuinely consulting her about them. The employee was awarded $7,439 plus superannuation.

What is redundancy?

Firstly, when we talk about redundancy, it is important to recognise that it is the position that becomes redundant, not the employee. A position becomes redundant when an employer:

  • doesn’t require a particular job to be done by anyone or
  • becomes insolvent or bankrupt

It can happen on transmission of a business to a new owner or due to a business downturn or as a result of the introduction of new technology or for a number of other reasons but the common factor is that the job is gone.

That doesn’t mean that you cannot reassign duties performed by the redundant position to other roles – you can as long as it is for the right reasons, it is fair on the other employee who is picking up the extra duties and that can all be demonstrated if it is challenged.

What is redeployment?

S389(2) of the Fair Work Act states:

“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 employee.”

This means that an employer must actively explore the question of whether any suitable redeployment options might potentially exist for any surplus employees.

They then have to consult the surplus employees about the availability and suitability of any such options. That means not just telling them about the options but ensuring that they properly informed about the roles, the duties, the remuneration, the hours, the location and any other relevant factors.

It also isn’t just a question of what vacancies might exist at the time although, as illustrated in this case, that is an important element. It could also be that opportunities might arise through retraining or through reductions in hours or changes in work locations or insourcing contracted work or in other ways.

Where multiple roles are being made redundant, there might be employees who are happy to take a voluntary redundancy which can make decisions easier.

Where there are substantive changes that would affect an employee’s hours of work and/or remuneration, any redeployment would need to be agreed with the employee.

It is only when it has been determined that no suitable redeployment options exist that a decision should be made that termination should occur.

Of course, there are situations where the end result is apparent from the start but there is still a process to work through.

What is consultation?

As is graphically illustrated in this case, consultation involves a lot more than just telling someone that their role is abolished, that there are no redeployment options and so they will be retrenched.

All awards and enterprise agreements have mandatory consultation clauses in them which require employers to advise employees and their representatives in writing and have discussions with them and their representatives about any major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees including:

  • The nature of the changes
  • The introduction of the changes
  • Their likely effect on employees
  • Measures to avoid or reduce the adverse effects of the changes on employees
  • Any other matters likely to affect employees.

Significant effects include:

  • Termination of employment, or
  • Major changes in the composition, operation or size of the employer’s workforce or the skills required, or
  • Loss of, or reduction in, job or promotion opportunities, or
  • Loss of, or reduction in, job tenure, or
  • Alteration of hours of work, or
  • The need for employees to be restrained or transferred to other work or locations, or
  • Job restructuring.

Effective and legally valid consultation processes are essential elements of any change management program and failures can create vulnerabilities in multiple jurisdictions as has really been demonstrated in a couple of cases where:

  • SafeWork NSW intervened in a change management process at University of Technology Sydney on the basis that the process was potentially giving rise to psychosocial risks for workers (poor change management is one of the prescribed psychosocial hazards) and
  • ANZ Bank found themselves in a dispute in the Fair Work Commission over alleged failure to comply with required consultation processes oin announced downsizing process.

So organisations really do need to have clear change management processes that expressly deal with their legal obligations across all relevant jurisdictions.

Tips for small businesses

In the CEVA Logistics case, the FWC did comment that the HR team should have been capable of assisting the employer to meet their obligations re the rules on redundancy.

So where does that leave SMBs who don’t have their own dedicated HR team or don’t have internal resources who have the necessary knowledge and experience in compliance requirements and effective change management practices?

You need to have someone to provide that for you whether that be a HR consultancy or an employment lawyer.

You also need to have an open and transparent relationship with our employees because, if people trust you, you will be much better equipped to have the hard conversations that go with difficult change decisions. Ideally, your external advisor should be able to support you with that too.

And if the issue is really about an employee’s performance or behaviour, deal with it on that basis rather than trying to disguise it as a redundancy that isn’t real.

Need a hand with managing change or redundancies or workplace relationships? Tell us what you need via the Contact Form below.

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

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Does that termination pass the 3 tents test?

Does that termination pass the 3 tents test?

by | Jan 15, 2026 | C1: Commitment, C2: Capability, C3: Competency, Compliance, Fair Work

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Does that termination pass the 3 tents test?

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One of the most challenging things that a small business owner might have to do from time to time is to dismiss and employee for misconduct. Often, that decision is tempered by a fear of the employee making an unfair dismissal claim. What if there was a simple test that might help you to sort through whether dismissal is the right course of action. Here is one that we use.

Having worked in the field of HR fort over 40 years, there have been hundreds of occasions when I have had to terminate employees or support employers through the process of terminating employees for misconduct.

In doing so, we need to consider fairness from a couple of angles:

  • Substantive fairness which requires that the action taken would not be harsh, unjust or unreasonable and
  • Procedural fairness which is about ensuring that due process has been followed and the principles of natural justice have been complied with

A process that I use to consider the substantive fairness of an action is to assess them against the “3 tents” namely:

  • Content: what actually happened, ensuring that you are aware of the facts of events that have given rise to consideration of action?
  • Intent: was the action or dereliction of duty or other offence deliberate or was it due to a misunderstanding or a heat of the moment thing and is it in or out of character for the individual concerned?
  • Extent: what was the effect of the action or dereliction of duty or other offence on the business and/or employees and/or other parties?

Of course there are the procedural elements to attend to as well but ensuring that the action that you propose will stand up to the “3 tents test” is a good start. One other piece of advice – if you have a situation where you think you might have to terminate an employee for misconduct, get professional advice before you go further. You might also need to stand them down with pay while you do that and work through the process. If you need a hand, give us a call on 0438 533 311. 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

PosWork

FMD Financial

Civil Contractors Federation Victoria

QUICK RESOURCE LINKS

Fair Work Ombudsman

Fair Work Commission

Worksafe Victoria

Safe Work Australia

Business Victoria

Victorian Equal Opportunity & Human Rights Commission

TELL US WHAT YOU NEED HELP WITH