Last week, the High Court delivered its decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, confirming a broader approach to assessing redeployment obligations in redundancy situations.

This decision has significant implications for employers managing restructures, particularly where employers engage contractors. The High Court has confirmed that the Fair Work Commission (FWC) is permitted to inquire whether an employer could have made changes to how it structures its broader workforce when determining whether a dismissal is a genuine redundancy.

BACKGROUND

Helensburgh Coal restructured its operations in mid-2020, citing reduced operational needs. As part of this restructure, ninety employees were dismissed by way of redundancy. At the same time, the business continued to engage two labour hire companies to provide labour hire work on site.

Twenty-two of the dismissed employees lodged unfair dismissal applications, arguing their terminations were not genuine redundancies because Helensburgh Coal had failed to properly consider redeployment opportunities.

Helensburgh Coal argued that the dismissals were genuine redundancies under section 389(1) of the Fair Work Act 2009 (Cth) (the Act). The FWC therefore needed to consider section 289(2) of the Act which provides that a redundancy will not be genuine if it would have been reasonable in all circumstances to redeploy the employee within the enterprise or associated entities.

PROCEDURAL HISTORY

The FWC initially found the dismissals were not genuine redundancies due to the availability of roles held by contractors. This meant that it would have been reasonable for Helensburgh Coal to redeploy the employees into the positions being held by the labour hire workers.

That decision was upheld by the Full Bench of the FWC, and subsequently by the Full Federal Court. Helensburgh Coal then appealed to the High Court.

HIGH COURT’S DECISION

The High Court unanimously dismissed the appeal.

The High Court confirmed:

• the assessment under section 389(2) is objective and can include consideration of whether it would have been reasonable to redeploy employees into roles already held by contractors;
• the FWC is not confined to the structure of the business as it stood at the time of dismissal. Rather, it may assess whether the employer could have made reasonable operational changes (such as insourcing contractor-held roles) to facilitate redeployment; and
• there is no requirement that a redeployment opportunity must be a current vacancy. The focus is on whether, in all the circumstances, redeployment would have been reasonable.

KEY TAKEAWAYS FOR EMPLOYERS

This decision reinforces that employers must go beyond checking whether vacancies exist when assessing redeployment. If contractors are performing ongoing work that could reasonably be undertaken by affected employees, the employer must factor this into its redeployment analysis.

In practice:

• continuing to use contractors while making employees redundant will be scrutinised;
• the use of contractors will not excuse an employer from exploring redeployment opportunities; and
• a role held by a contractor may constitute a redeployment opportunity if the employer has practical control over whether that work could be performed by employees.

WHAT EMPLOYERS SHOULD DO

Employers planning restructures should:

• review current contractor arrangements to determine whether affected employees could perform similar work;
• consider whether insourcing contractor work is operationally and commercially viable. This includes assessing training needs and contractual obligations;
• document the redeployment assessment process and the reasons why redeployment was or was not considered reasonable; and
• ensure affected employees are consulted about all redeployment options (including where operational change would be required).

This High Court decision increases the risk exposure during a restructure for employers who maintain flexible workforce models.

Employers should be prepared to demonstrate that they took a considered, objective approach to redeployment which was not limited to formal vacancies, but extended to roles that could reasonably have been made available, including those held by contractors.

For businesses undertaking structural change, early legal advice and a clearly documented process will be critical in managing risk and demonstrating compliance.

We can assist with restructure and redundancy planning, contractor reviews, and compliance with redeployment obligations under the Act. Please contact us to discuss how this decision may apply to or affect your organisation.

This article was written by Jessica Nicholls, Partner, and Alana De leso, Solicitor.