In Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, the High Court has fundamentally reshaped the way employers must approach redundancy decisions.
The case arose when Helensburgh Coal Pty Ltd (Helensburgh Coal) made 90 employees redundant during the COVID 19 downturn while continuing to engage external contractors at the mine. Twenty-two employees challenged their dismissals, arguing that instead of being made redundant, they could have been redeployed into work being performed by those contractors.
The central question was whether, under section 389(2) of the Fair Work Act 2009, it would have been reasonable in all the circumstances to redeploy the employees within the enterprise. If so, the dismissals would not constitute genuine redundancies, opening the way for unfair dismissal claims to proceed.
Helensburgh Coal argued that there were no vacant positions and that much of the work was specialist work carried out by contractors under service agreements. It maintained that the Fair Work Commission was not permitted to consider changes to the way it operated its enterprise, such as replacing contractors with employees.
The High Court disagreed. It confirmed that the Commission is entitled to consider whether employees could reasonably have been redeployed into roles being performed by contractors, and more broadly, whether workforce arrangements could have been adjusted to make redeployment possible.
The Broader Meaning of Redeployment
This decision confirms that redeployment is not limited to filling existing vacancies. Redeploying may involve reorganising or transferring staff, or even changing how a business structures its workforce.
For employers, the effect is significant. Decisions to retain contractors while making employees redundant are now more likely to be scrutinised, particularly where there is evidence that employees could perform the work undertaken by contractors.
The Commission may also consider the full range of circumstances, including workforce composition, the nature and terms of contractor arrangements, upcoming retirements or contract expiries, and whether training could equip an employee to step into another role.
What This Means for Employers
The High Court’s ruling makes clear that redundancy is no longer a straightforward option where alternative staffing arrangements are available. Employers must be able to show that every reasonable avenue for redeployment was considered and documented. That assessment can extend beyond the immediate business and include related or associated entities.
When determining whether a dismissal is a genuine redundancy, the Commission may enquire into:
- whether employees could have been redeployed into work currently performed by contractors or labour hire staff
- whether associated or related entities could have offered suitable roles
- whether short term or foreseeable vacancies, such as retirements, parental leave or contract expiries, could have provided opportunities
- whether retraining or modest adjustments to workforce arrangements could have made redeployment possible.
Final Thoughts
For employers, the message is clear: redundancy must be treated as a measure of last resort. Before proceeding, organisations should carefully document the steps taken to explore redeployment opportunities across their enterprise and any associated entities, and be ready to explain why those opportunities were not reasonable in the circumstances.
A failure to do so risks a finding that the redundancy was not genuine, leaving the business exposed to unfair dismissal claims and significant reputational risk. Careful planning, robust consultation, and thorough analysis of redeployment options will be essential to minimise exposure.
If you’re an IRiQ Law HR Retainer client, now is the time to use your included hours for tailored advice on managing redundancy risks. We can help with restructures, redeployment assessments, and responding to claims.
Unsure where to start? Contact us today. Our team will guide you through your obligations and ensure your approach is fair, compliant, and defensible.
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