12 August 2025
5 min read
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In a landmark decision, the High Court has found that redeployment opportunities in the context of redundancy are not only confined to vacant roles. Rather, an employer has a broad obligation to consider whether changes can be made to its current workforce to create or make available a position for an employee in a redundant role to avoid retrenchment.
The decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 provides clarity on the different approaches taken by courts and the Fair Work Commission (FWC) regarding the question of when it would have been reasonable to redeploy an employee to a vacant role.
Employers are continually looking at opportunities to restructure their operations to support business growth and sustainable operations. For those considering restructures in future, we unpack the High Court’s decision and its implications on workforce planning.
Helensburgh Coal Pty Ltd (Helensburgh Coal) is a large mining company that employs workers to operate a coking coal mine owned by Peabody Energy in Helensburgh, NSW. Helensburgh Coal engaged Nexus Mining Pty Ltd (Nexus) and Mentser Pty Ltd (Mentser) to supply contractors on an ‘as needs’ basis to supplement its permanent employee workforce at the mine.
Due to a reduction in demand for coking coal, Helensburgh Coal restructured its operations at the mine during COVID-19. While some of the contractors’ work was insourced to existing employees, Helensburgh Coal decided to dismiss 90 employees and reduce its contractor workforce by 40%. There were no vacant roles within Helensburgh Coal, nor was it foreseeable that a vacancy might arise in the future. Despite these mass redundancies, Helensburgh Coal did not terminate its existing service agreements with Nexus and Mentser.
22 of the employees challenged their dismissals in the FWC, arguing that their dismissal was unfair and not a ‘case of genuine redundancy’ as Helensburgh Coal could have redeployed them to other roles occupied by contractors from Nexus and Mentser.
Following a series of decisions in the FWC, Helensburgh Coal commenced judicial review proceedings in the Full Court of the Federal Court of Australia, seeking to quash the FWC decisions and prohibit the FWC from further considering the unfair dismissal applications. However, Helensburgh Coal was unsuccessful in their challenge.
Helensburgh Coal was granted special leave to appeal the Federal Court’s decision to the High Court of Australia. The High Court’s decision turned on the construction of section 389(2) of the Fair Work Act 2009 (Cth) (FW Act).
Under this section, a dismissal will not be a ‘genuine redundancy’ if it would have been ‘reasonable in all the circumstances’ for the employee to be redeployed within the employer’s enterprise or that of an associated entity. Helensburgh Coal argued that in considering what was ‘reasonable in all the circumstances’, the FWC was not permitted to enquire into whether an employer could have changed its workforce arrangements to create or make available a position for an employee who would have otherwise been redundant.
While the High Court found that it is not appropriate for the FWC to disregard the very nature of the employer’s enterprise, it held that how an employer uses its workforce or the reasons behind these operational decisions are relevant in determining whether it would have been ‘reasonable in all the circumstances’ to redeploy an employee within the employer’s enterprise. These circumstances are broad and can include:
Most notably for employers, the High Court found in the circumstances before Helensburgh Coal that redeployment was ‘reasonable’ even where no vacant position exists within the employer’s enterprise, and redeployment would require a reorganisation of the employer’s workforce to create such a role. The High Court emphasised that the FWC can consider whether there was work or a demand for work within the employer’s enterprise or that of an associated entity at the time of the dismissal, which could have been performed by the otherwise redundant employee.
The High Court dismissed Helensburgh Coal’s appeal.
The High Court held that the FWC can enquire into a broad range of matters when determining whether it was reasonable to redeploy an employee prior to dismissal. Employers need to adopt a detailed process when considering redeployment opportunities as part of its restructure programs, before proceeding with a dismissal. This process should include an assessment of whether operations could reasonably be adjusted both within the enterprise and across related entities. An employer’s use of external contractors will likely attract greater scrutiny because of this decision.
While the High Court makes it clear that the reasonableness of redeployment is to be assessed on a case-by-case basis and that it will not always be reasonable to displace contract labour, there are options for consideration, including:
In assessing these options, workforce planning materials such as organisational practices, policies, procedures, strategies and plans will be centrally relevant in determining whether a redeployment opportunity is reasonable.
If you have any questions about how this decision may impact your organisation, please get in touch with us.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate
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