Digging Deeper into Redeployment: A Minefield for Employers

Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29

On 6 August 2025, the High Court of Australia unanimously dismissed an appeal from the Full Court of the Federal Court of Australia, finding that an employer failed to properly consider alternative redeployment opportunities when dismissing 22 workers by way of redundancy. The High Court upheld the Fair Work Commission’s (FWC) original decision that it would have been reasonable for the employees to have been redeployed to perform the work that was being performed by contractors, and therefore the terminations were not cases of “genuine redundancy”.

Background

In 2020, Helensburgh Coal Pty Ltd (Helensburgh) restructured its operations at the mine at which 22 of its employees were employed, as the COVID-19 pandemic had significantly reduced the demand for coking coal. This restructure meant fewer workers were required, and consequently the 22 employees were among those who were dismissed. Meanwhile, Helensburgh continued to engage contractors on an “as needs” basis to perform the unallocated work at the mine. There were enough ongoing jobs performed intermittently by contractors for all of the former employees to be redeployed.

The 22 employees filed applications with the FWC, alleging they were unfairly dismissed. Helensburgh responded, alleging that the employees were terminated by way of genuine redundancy.

Section 389(2) of the Fair Work Act 2009 (Cth) (FW Act) states:

“A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

1. The employer’s enterprise; or
2. The enterprise of an associated entity of the employer”.

The FWC was asked to determine whether it would have been reasonable in all the circumstances for the employees to be redeployed within Helensburgh's enterprise for the purposes of s 389(2) of the FW Act. The FWC held that it would have been reasonable for the employees to have been redeployed to perform the work that was being performed at the mine by the contractors, and therefore the employees had been unfairly dismissed as this was not a case of genuine redundancy.

The Full Federal Court dismissed an application for judicial review of this decision.

Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29

Helensburgh appealed to the High Court, on grounds that the FWC had misinterpreted the construction of section 389(2), by inquiring whether it would have been reasonable in all the circumstances for the employees to have been redeployed to perform work that was being performed by the contractors.

The High Court held that the FWC was permitted to inquire into whether:

1. there were any vacant positions which existed at the time, or which were imminently expected to arise, taking into account the enterprise as it was on the day, considering “all of the actual policies, processes, procedures, strategies and business choices of the enterprise, including any plans it had for the future”; and
2. an employer could have made changes to how it used its workforce to operate its enterprise, including by replacing contractors with employees, so as to create or make available a position for an employee who would otherwise have been redundant.

In doing so, the High Court affirmed the previous FWC decision that the employees were unfairly dismissed as there were jobs imminently available to which they could have been redeployed “without any change in any essential or important facets of the enterprise”.

Takeaways

This decision clarifies an employer’s obligations when considering redeployment of employees whose positions are redundant, including that employers must consider, for the purposes of s389(2) of the FW Act, whether:

1. it would be reasonable to redeploy the employee within vacant positions, or positions which are imminently expected to arise; and
2. there is demand for work within the employer’s enterprise or an associated entity and whether any changes to the employer’s workforce could be made to enable reasonable redeployment so that the otherwise redundant employee can perform that work.

However, the nature of an employer’s enterprise must still be considered, noting that a potential redeployment that would involve a change to an essential or important facet of the enterprise itself will be unlikely to be considered reasonable.

This judgment does not, in itself, impede employers from outsourcing work to contractors, nor does it create an obligation to replace contractors with employees who will otherwise be terminated by way of redundancy as doing so “would be a very grave step to take” in most circumstances, and therefore would be unlikely to be reasonable in all the circumstances. Rather, the High Court has confirmed its expectation that employers will at least consider changes which may cause some reasonable disruption to the enterprise’s operations, to ensure employees can be redeployed wherever possible.

Helensburgh Coal Pty Ltd v Bartley (S119-2024) [2025] HCA 29.pdf