Procedural Background
Section 389(2) of the Fair Work Act 2009 (FW Act) provides that a person is not unfairly dismissed if their dismissal was a genuine redundancy. A redundancy is not genuine if it would have been reasonable in all the circumstances for the dismissed employee to be redeployed within the employer’s enterprise.
The central dispute in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 was whether the employer should have considered redeploying dismissed workers to perform jobs that contractors were performing at the mine.
The Commission agreed with the contentions by the dismissed workers that their redundancies were not genuine because they could have been redeployed to perform the work being done by contractor’s employees.
Conversely, Helensburgh Coal argued the Commission made an error in construing section 389(2) of the FW Act. They argued section 389(2) did not permit the Commission to consider whether the employer could (or should) have made changes to its enterprise to create new employee roles that would facilitate redeployment. It contended that the redundancies were genuine and the dismissed employees should not be able to pursue unfair dismissal claims.
On 6 August 2025, the High Court dismissed Helensburgh Coal’s appeal.
Background Facts
In August 2018 Helensburgh Coal engaged a contractor to provide various services at its mine.
In March 2020, Helensburgh Coal engaged a second contractor with respect to conveyor management. At the same time, the COVID-19 pandemic began to have commercial and operational impacts.
In May 2020, Helensburgh Coal commenced consultations with employees and unions about COVID-19, market conditions and reducing production crews at the mine.
By late June 2020, consultations were completed and Helensburgh Coal agreed to insource some work done by contractors to help minimise redundancies. However, some operations employees were still dismissed due to the reduction of production crews.
In April 2024 the Full Court of the Federal Court dismissed Helensburgh Coal’s contentions that the Commission acted without authority by enquiring into whether the roles of contractor employees could have been filled by the dismissed production employees.
The High Court found no error with the decision of the Full Court of the Federal Court.
Implications for Employers
The principle arising from the High Court’s decision is that an employer considering whether to make employees redundant, or to redeploy them within the employer’s enterprise, should consider whether it is reasonable in all of the circumstances to redeploy the employee into a role being filled by a different employee, or a role being filled by the employee of a contractor.
Considerations about contractual obligations, financial impacts and the impact on the enterprise will be relevant to that redeployment consideration. However, failure to demonstrate such consideration or a failure to redeploy when redeployment was reasonable in all of the circumstances may mean that the purported redundancy is not genuine and that the Commission can consider whether an unfair dismissal remedy should be granted.
In our view, this has the potential to make redundancy decisions more complex. We recommend that employers take early legal advice to ensure that their redundancy processes are reasonable, compliant and well documented.
Panetta McGrath Lawyers can assist Employers with their redundancy process to ensure compliance with the above obligations. Please contact Victoria Stamper, Principal Lawyer and Practice Leader of Employment, Workplace Relations and Safety to discuss how we can help you through this process.
Written by Senior Associate Sean Foy and Solicitor Emma Campanella
