On 6 August 2025, the High Court delivered its judgement in Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29, confirming the test of ‘genuine redundancy’ for an unfair dismissal under section 389 of the Fair Work Act 2009 (Cth) (FW Act).
In rejecting the applicant’s challenge, the court held that it is within the Fair Work Commission’s (FWC) scope to consider whether a company could have made changes to their enterprise to redeploy their employees in relation to unfair dismissals.
This finding serves as important insight on the redeployment options which employers will need to consider following changes to their operational conditions.
Key Facts
Due to the impact of the COVID-19 pandemic on demand for coking coal, Helensburgh Coal Pty Ltd (Helensburgh) restructured its operations resulting in fewer workers being required and relied on contractors instead.
Twenty-two of the dismissed employees (the Applicants) lodged unfair dismissal claims with the FWC claiming their dismissals were unfair and not cases of genuine redundancy under the FW Act. They argued that they could reasonably have been redeployed within Helensburgh’s enterprise to perform work that was being performed by the contractors. Helensburgh argued that the dismissals were for the purpose of ‘genuine redundancy’ (as permitted by section 389(1) of the FW Act).
The FWC agreed with the Applicants and held that Helensburgh should have considered whether the employees could have performed the contractors’ work. Helensburgh appealed on the basis that it was not within the FWC’s scope to consider whether the mining company could have made changes to their enterprise.
The Fair Work Act and ‘Genuine Redundancy’
In their decision, the High Court primarily examined whether the FW Act allowed the FWC to consider if the dismissed employees could have assumed the role of the contracted workers.
Section 389(1) of the FW Act states that a person’s dismissal will be a case of ‘genuine redundancy’ where the employer no longer required the employee’s job to be performed due to a change in “operational requirements”. Section 389(2) clarifies that this will not apply where:
“… it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
The Court defined “redeployed” as a term which broadly considers whether there was work within the employer’s enterprise performable by the employees; it does not limit a relocation of employees only to where there is a vacant position [36].
Going further, the phrase “all the circumstances” was similarly given a broad definition as one which points against any binding rules in relation to section 389(2). This means that the employees’ individual skill sets, training, and other competencies can be placed against an organisation’s procedures, policies, and other attributes when identifying opportunities for redeployment [40].
Therefore, the Court dismissed the appeal by Helensburgh and maintained that the FWC was permitted to inquire as to whether the company could have restructured their workforce to make available positions for otherwise redundant employees.
Limits to a Section 389 Inquiry
Although agreeing with the majority, Justices Edelman and Stewart in their separate judgement encouraged caution when considering replacing individual contractors with other employees in the future.
It was noted (at [136]) that:
“… it would be difficult to conclude that redeployment is reasonable if that meant that another person with a job, for which there is a business need, has to make way for someone else whose job was no longer needed.”
This means that although the FWC can consider whether an employer could have made changes to their workforce arrangements when determining whether there has been an unfair dismissal, it is not within their scope to consider whether the individual roles occupied by contractors could have been replaced by the otherwise redundant employees.
Key Takeaways
Employers should carefully consider all reasonable avenues for redeployment available in the context of their broader workforce arrangements (including the potential to change any outsourcing arrangements), before making their employees redundant.
Employment matters affect both employees and employers. Contact our experienced employment lawyers for practical advice and strong representation to help resolve issues quickly and effectively.
Aggie Vlahos, Partner
[email protected] | 0405 995 057
Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.