Reasonable redeployment, adverse action protection for employee complaints or inquiries, and protecting jobs in enterprise agreements and workplace determinations: has the Fair Work Act strengthened employment security?

Submission note: Thesis submitted in total fulfilment of the requirement for a Professional Doctorate in Law to the Law School, La Trobe University, Victoria.

The focus of this thesis in terms of its subject matter is to examine three new employment security protections introduced in the Fair Work Act 2009 (Cth). The three new protections are as follows: the right to be redeployed in redundancy situations; adverse action protection in relation to employment complaints or inquiries by employee to employers; and the regulation governing job security clauses in enterprise agreements and workplace determinations. The arguments made in this thesis are that: 1. There is an objective intention by federal Parliament to strengthen employment security from 1984 to the present. 2. The federal Parliament’s intention to strengthen employment security has been negated to a considerable degree by the three provisions examined in this thesis. Chapter One defines employment security for the purposes of this thesis. It also describes the importance of employment security in Australian labour law and addresses the two research areas stated above. Chapter One also describes the methodology used in the thesis. Chapter Two tracks the historical changes in the legislation from 1984 to the present for five areas of labour law, namely, unfair dismissal, anti-discrimination law, redeployment in redundancy, an employee’s right to complain, and the regulation of job security clauses in enterprise agreements and workplace determinations. The purpose of this review is to illustrate the general trend in Australian federal labour law to increasingly protect employment security from 1984 to the present. Chapters Three, Four and Five assess the legal outcomes under the three Fair Work Act 2009 provisions mentioned above. The relevant case law is analysed to determine the interpretation of the provisions. Chapter Six summarises the findings made in the thesis and analyses what caused the legislative intention to be negated to a considerable degree. It also offers suggestions on how to amend the Fair Work Act 2009 and its Explanatory Memorandum to ensure the legislative intention can be carried out. Drawing on the objective intention by the legislature to strengthen employment security as posited in Chapter Two, the thesis overall argues that the courts’ interpretation of the new provisions has resulted in the intention being negated to a considerable degree, and that the initial promise of the Fair Work Act 2009 to fortify employment security has not eventuated in practice. The thesis makes an original contribution to knowledge of relevance to the legal profession. Whilst unfair dismissal has been the subject of publications and secondary sources over a long period of time, the three areas examined in this thesis have not been analysed in detail in publications and secondary sources and have not been linked together in this way by other publications.