In a landmark decision (Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29) the High Court has confirmed that when considering a “genuine redundancy” the Fair Work Commission can consider whether it would have been reasonable in all the circumstances to redeploy an employee to do work previously done by contractors.

The broad reading of these provisions may increase the burden particularly on larger employers when they are looking to terminate employees as part of a major restructure where the employer has a range of contractors doing similar work to the redundant employees.

Facts and Prior Decisions

During the years of the COVID-19 epidemic, the employer (Helensburgh) sought to restructure operations which resulted in the termination of a large number of its employees at its Mine. 

The terminated employees brought unfair dismissal applications arguing that the terminations were not cases of "genuine redundancy" as it would have been reasonable in all the circumstances for the Employees to be redeployed to perform the work that was being performed by the Contractors.

Helensburgh contended that, properly construed, the “reasonable redundancy” test does not permit the FWC to consider changes to the ways in which it might have conducted its enterprise, including by replacing the Contractors with the Employees.

Through a series of first instance decisions and appeals, the FWC ultimately held that the terminations were not cases of "genuine redundancy" – which was upheld by the Full Bench of the FWC, and the Full Federal Court, following appeal by Helensburgh on all occasions.

The High Court’s Decision

The meaning of the employer no longer requiring the position

The first part of s389 of the FW Act as to genuine redundancy is that “the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise”.

The High Court clarified that it is the employer’s decision to no longer require a person’s job (i.e. the nature of the work they performed) to be done by anyone.  There is no reasonableness requirement in respect of this part of the test.

The meaning of reasonable redeployment

The second part of s389 of the FW Act as to genuine redundancy is that 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 the employer's enterprise.”

Gageler CJ and Gordon and Beech-Jones JJ made the following observations about the scope of the redeployment requirement:

1. The notion of redeployment does not require there to be a vacant position. The word "redeploy" does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment.
2. The word "redeployed" looks to whether there was work, or a demand for work, within the employer's enterprise (or an associated entity's enterprise) that could have been performed by the otherwise redundant employee.
3. The words "all the circumstances" are unmistakably broad. They can include:

• its policies, including appetite for risk;
• plans; processes; procedures;
• business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors;
• decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors;
• contract terms, such as whether they are "as needs" contracts and whether the contractors are on daily work orders or on some long-term fixed commitment; 
• practical concerns, such as whether redeployment would require the employee to undergo further training; and
• anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired.

In a separate judgment that also rejected the appeal, Edelman J stated:

In the circumstances of this case, there were jobs imminently available to which the former employees could have been redeployed. The relevant contractors were supplied by the contracting companies on an "as needs" basis to do work that was ongoing and sustaining, without any continuing obligation upon Helensburgh Coal to request the provision of those contractors.

There were jobs imminently available to which the former employees could have been redeployed without any change in any essential or important facets of the enterprise.

In another separate judgement, Steward J did somewhat limit redeployment in stating that “Redeployment of a person at the expense of another person's position would be a very grave step to take and would be unlikely to be a reasonable outcome.”

The Court upheld the outcome by the FWC and the Full Federal Court, awarding the employees dismissed by Helensburgh with reinstatement and compensation for their unfair dismissal.

Key Takeaways for Employers

The Helensburgh Coal saga illustrates a significant elevation of employer obligations in redundancy contexts under the Fair Work Act. Employers must now think carefully before outsourcing, downsizing, or refusing redeployment options—even when roles are currently filled by contractors or not immediately vacant. Documentation, consultation, and exploring all alternatives are essential. How the High Court ultimately frames the test in s389(2) will likely have lasting impact on redundancy practices across Australia, noting these key issues:

• Contractor role must be considered in redeployment options. Employers must assess whether it is reasonable to redeploy redundant employees into roles currently performed by contractors—even if those roles aren't technically vacant. If contractor roles are short-term or "as needed," the employer may be expected to insource that work and redeploy redundant employees into those tasks. Where contractors are engaged on long-term bases, redeployment into those roles may not be considered reasonable if the roles are not imminently available—but this will still need to be assessed.  While redeploying employees whose positions have been made redundant into the roles of contractors performing similar duties, this would now appear to be something employers are obliged to consider. 
• Timing of redeployment options also matters. Employers must take a much wider view of redeployment possibilities during restructures, including insourcing options and retraining. Employers must consider not just current redeployment options, but also whether potential future redeployment opportunities should be brought forward to avoid dismissal.
• Increased risk when restructuring. A more thorough redeployment process—especially involving contractor reviews—can increase the time and effort associated with downsizing or restructuring. Failing to consider contractor roles and other redeployment options may increase exposure to unfair dismissal claims.

Further information / assistance regarding the issues raised in this article is available from the authors, Brian Jackson, Special Counsel, Megan Wardle, Associate, or your usual contact at Moray & Agnew.