- with Senior Company Executives, HR and Inhouse Counsel
The High Court of Australia has delivered a significant decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, reshaping the legal landscape around redundancies and redeployment under the Fair Work Act 2009 (Cth) ('FWA'). The Court has confirmed that employers must adopt a broader and more practical view of redeployment opportunities before concluding that a dismissal amounts to a "genuine redundancy".
Background
In 2020, Helensburgh Coal Pty Ltd ('Helensburgh') dismissed 47 permanent employees from Metropolitan Coal Mine citing redundancy due to reduced demand during the COVID-19 pandemic. Despite the dismissals, Helensburgh continued to engage contractors to perform similar work. The dispute began when Mr Bartley, along with 22 other employees, challenged their dismissals following a restructure at Helensburgh Coal's Metropolitan Mine. Helensburgh claimed the dismissals were genuine redundancies, arguing that no suitable roles were available within its enterprise. However, the employees, supported by the Mining and Energy Union, argued they could have been reasonably redeployed into roles being performed by contractors. The Fair Work Commission ('FWC') initially found in favour of the employees, with Commissioner Riordan concluding that redeployment into contractor roles was feasible with minimal training. Helensburgh appealed this decision twice to the Full Bench of the FWC, but both appeals were dismissed. The company then sought judicial review in the Full Federal Court ('FFC'), which upheld the FWC's findings and confirmed that the Commission was entitled to consider redeployment options beyond existing vacancies, including contractor roles.
The Issue before the High Court
The main issue was whether under s 389(2) of the FWA, the FWC is entitled to consider if an employer could have changed how it uses its workforce when deciding if it would have been 'reasonable in all the circumstances' to redeploy an employee instead of making them redundant.
The High Court Reasoning
The Court confirmed that the FWC can take a broad view of an employer's "enterprise" when assessing whether redeployment would have been reasonable. This includes considering roles performed by contractors, provided those roles could realistically be undertaken by employees. The Court made clear that the term "redeploy" does not require a vacant position, nor does it exclude the possibility of some reorganisation of the workforce to facilitate redeployment.
However, the majority also set clear boundaries around this flexibility:
- The FWC cannot require an employer to fundamentally alter the nature of its business. For example, it cannot demand that a company change its core operations or restructure its enterprise in a way that shifts its commercial identity.
- The Commission's inquiry must remain within the scope of the employer's existing business, activity, project, or undertaking, not how the employer chooses to staff or structure its workforce.
- Redeployment must be assessed objectively, based on what would have been reasonable at the time of dismissal, and must consider all the circumstances, including the employee's skills and the employer's workforce arrangements.
While all judges agreed with the outcome, Edelman J and Steward J offered narrower interpretations. Edelman J emphasised that redeployment must be "actually or imminently" available at the time of dismissal, rather than hypothetical. Steward J focused on preserving business autonomy, stressing that redeployment is only reasonable if it does not require the employer to restructure or redesign its business model.
The Court unanimously dismissed the appeal.
What does this mean for employers?
Employers should be aware that redundancy decisions are now under closer scrutiny. It's no longer enough to say there are no permanent roles available. Before making someone redundant, employers must consider the whole organisation, including any possible redeployment options, not just current vacancies.
To ensure a redundancy is genuine, employers should:
Understand the scope of your enterprise
The term "enterprise" refers to your business, activity, project or undertaking – not just how you structure your workforce.
Look beyond vacant positions when considering redeployment options
Redeployment can involve reorganising or reshaping roles to accommodate the employee, as long as it's reasonable.
Employers should consider whether work exists that could be done by the employee, even if it is currently performed by a contractor.
Consider all the circumstances
The FWC will look at all relevant factors, including:
- The employee's skills, experience, and training
- Your business's plans, policies, and risk appetite
- Use of contractor's vs employees
- Upcoming changes (e.g. retirements, parental leave, contract expiries)
- Whether training could enable redeployment
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
