Full time to part time

[Pious]

Hi there! I've benefited from reading posts for a while, now it is time to ask a question. Any help is appreciated. I am a small business employer - less than 15 staff. The employer is a partnership, not a company, though I dont think that makes any real difference now. In any event, due to a change in the the nature of work (part GFC related, part process related) what was a full time position occupied by staff member X for a number of years, is now a part time position, maybe 2 - 3 hours per day. As I see it, we can invite X to agree to reduced hours, and if he/she refuses, we can make the full time position redundant and pay X out current entitlements. In that case we would advertise and take applications and consider all, including any application from X, on their merits. If we were to go down that path, the role would probably change anyway to something that better suited us with current needs (it would involve skills in other areas as well). I dont see an obligation to pay redundancy as we are a SBE, though there will be relatively lengthy notice requirements. We want to do what is fair, but at the moment X seems to be unlikely to look at the issue from anyone else's viewpoint, and I sense there will be trouble. I've looked over the web, and literature, but cant find much in the way of resources for this situation. Anyone know any sources for them?

[HeidiC]

You are allowed to reduce the hours of the position due to operations requirements and there are some resources around this on the Fair Work Online website. The Fair Work Act now requires you to consult with the employee regarding any major changes that will affect their employment - this is in every modern award and I suggest you document all your consultations with the employee in case they take this further.

In regards to the possible redundancy, you need to consider whether it will be a genuine redundancy if you are likely to fill the position again and you need to consider your costs. Fair Work Online states:
An employer who is a small business employer is not required to provide redundancy pay on the termination of an employee’s employment. A small business employer for the purpose of determining redundancy pay, is an employer who, at a particular time, employs fewer than 15 employees (this is based on a head count of employees as detailed below). (Fair Work Online)

When calculating the number of employees, all of the following points are taken into account:

1. all employees employed by the employer at that time are to be counted (including FT & PT)
2. a casual employee is not be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis
3. associated entities are taken to be one entity
4. the employee being terminated, and any other employees being terminated at that time are counted

But it also says:

Redundancy under the NES happens when an employer either:

- decides they no longer want an employee’s job to be done by anyone and terminates their employment (except in cases of ordinary and customary turnover of labour); or
- becomes insolvent or bankrupt.

Redundancy may happen when:

1. the job someone has been doing is replaced due to the employer introducing new technology (ie. it can be done by a machine)
2. business slows down due to lower sales or production
3. the business relocates
4. a merger or takeover happens
5. the business restructures or reorganises.

The redundancy needs to be a "Genuine Redundancy" (have you consulted the employee, have you reviewed redeployment or other jobsharing options, do you want the position to continue being done by someone and have you given the correct notice), otherwise the employee could claim unfair dismissal, constructive dismissal or a breach of general protections if they have worked a 'continuious service period' of over 12 months and the you have not followed the correct procedure set out in the Small Business Dismissal Code.

The Small Business Dismissal Code can be found on the FWA's internet site at Small Business Fair Dismissal Code | Fair Work Australia

It will go easier if you are honest and candide with the employee prior to making them redundant and involve them in your decision making (if possible). Redundancy and downsizing is never easy and it is easily predictable that the employee will be quite upset. Consider all options and document all your actions.

I hope this helps!

[Pious]

Thanks Heidi. Yes, I think I came across most of that, but in my searching there wasnt any "idiot's guide" to this issue. It is firm that reducing hours is a deemed redundancy, so I am working on that basis, but I havent been able to find whether there is any procedure for discussions concerning the "new" position. We are documenting the discussions, and inviting input, as you say, because I think you are right about the likely response. Your feedback was good, thanks.