Can You Refuse Redundancy in Australia?

So, the short answer is: generally, no — if the redundancy is genuine, you cannot refuse it. A genuine redundancy under the Fair Work Act means the employer no longer requires the employee's job to be performed by anyone, and the employer has complied with any consultation requirements in the applicable modern award or enterprise agreement. If these conditions are met, the redundancy is lawful, and the employee's employment is terminated.

The employee receives their entitlements (notice period, redundancy pay, accrued leave payouts) but cannot insist on keeping their job. However, this does not mean you have no options.

If you believe the redundancy isn't genuine — for example, if your position is being filled by someone else, or if the employer failed to consult with you, or if there were reasonable redeployment opportunities that the employer did not offer — you can challenge the redundancy. Understanding the difference between a genuine and non-genuine redundancy is critical, because if a redundancy is found to be not genuine, it may constitute an unfair dismissal, opening the door to reinstatement or compensation claims.

For a redundancy to be classified as genuine under section 389 of the Fair Work Act, three conditions must all be met.

If the employer hires someone else (including a contractor) to perform substantially the same role, the redundancy is likely not genuine.

For a redundancy to be classified as genuine under section 389 of the Fair Work Act, three conditions must all be met.

• the employer must no longer require the job to be performed by anyone because of changes in the operational requirements of the business.

  This means the job itself is disappearing — not just the person in it

• the employer must have complied with any consultation obligations in the applicable modern award or enterprise agreement
• the employer must consider whether it would have been reasonable to redeploy the employee to another role within the employer's enterprise or an associated entity.

  If there was a suitable alternative position available and the employer didn't offer it, the redundancy may not be genuine

Most awards require the employer to notify affected employees as early as practicable, discuss the changes and their likely effects, consider employee suggestions for mitigating the impact, and provide information about the changes in writing. Failure to follow these consultation steps can render the redundancy not genuine.

Before making an employee redundant, an employer must consider whether it would be reasonable to redeploy the employee within the employer's enterprise or any associated entity of the employer. 'Associated entity' is defined broadly and can include related companies, subsidiaries, and other businesses under common ownership or control. What counts as 'reasonable' redeployment depends on the circumstances. Factors the FWC considers include: the nature of the available positions (are they at a comparable level and pay?), the employee's skills, qualifications, and experience (can they perform the alternative role with reasonable training?), the location of the alternative position (is relocation required, and is it reasonable?), and the employee's personal circumstances.

An employer doesn't have to create a position that doesn't exist — but if a suitable vacant position exists, they must offer it. If the employee is offered a reasonable redeployment opportunity and refuses it, the redundancy can still proceed and will likely be considered genuine.

However, if the offered position involves a significant reduction in pay, status, or seniority, the employee may have grounds to argue it was not a genuine offer. If you're being made redundant, ask your employer what redeployment opportunities they considered and why none were suitable.

Most modern awards and enterprise agreements contain specific clauses requiring employers to consult with employees about major workplace changes, including redundancies. The standard award consultation clause requires the employer to: notify affected employees and their representatives (such as a union) of the proposed changes as soon as practicable, discuss the introduction of the changes, the effects on employees, and measures to mitigate adverse effects, give genuine consideration to matters raised by employees in the consultation, and provide relevant information in writing (including the nature of the changes, the expected effects, and any other matters likely to affect employees). This consultation must occur before the final decision to make positions redundant — not after the decision has already been made.

A common employer mistake is to present redundancy as a fait accompli and then 'consult' as a formality. This does not satisfy the consultation obligation.

This is worth knowing. If your employer failed to consult as required by your award or enterprise agreement, the redundancy may be found to be not genuine, even if the job was genuinely no longer needed. Keep records of when you were notified, what information you were given, and whether your views were genuinely considered.

While NES redundancy pay provides a minimum entitlement (4 to 16 weeks depending on years of service), there's nothing preventing you from negotiating a more generous package. Many employers, particularly larger ones, are willing to negotiate to avoid the cost and disruption of a disputed redundancy. Strategies for negotiation include: asking for additional weeks of redundancy pay above the NES minimum (it's common for employers to offer 2-4 weeks per year of service in negotiated packages), requesting extended notice periods or payment in lieu of extended notice, negotiating continuation of benefits such as health insurance or a company car for a specified period, requesting outplacement services (career coaching, resume writing, interview preparation), asking for a positive written reference, negotiating the timing of the termination to maximise financial benefits (for example, waiting until after a bonus payment date), and requesting payment for any accrued but untaken personal/carer's leave (not required by law but sometimes offered in negotiations).

If your employer is offering a voluntary redundancy, you generally have more bargaining power than in a compulsory redundancy situation, because the employer needs volunteers to avoid forced redundancies.

If you're made redundant, you face a decision: accept the redundancy and move on, or challenge it through the Fair Work Commission. Accepting the redundancy means you receive your entitlements (notice, redundancy pay, accrued leave) and leave the employer. You can still negotiate the package before accepting.

It provides certainty and allows you to move on quickly. Challenging the redundancy means lodging an unfair dismissal application with the FWC within 21 calendar days of your termination date.

Quick version: You would argue that the redundancy wasn't genuine — either the job was not truly redundant, the employer failed to consult, or reasonable redeployment wasn't considered. If successful, the FWC can order reinstatement (returning to your job) or compensation (up to 26 weeks' pay, minus any redundancy pay already received).

The risks of challenging include: no guarantee of success, legal costs if you engage a lawyer, the emotional toll of a dispute, and potential damage to your professional reputation in your industry.

The risks of not challenging include: missing out on a remedy if the redundancy was truly not genuine.

If you are unsure, seek legal advice quickly — the 21-day filing deadline is strict. Many employment lawyers offer free initial consultations and can assess the merits of your case.