Introduction

The recent High Court decision in Helensburgh Coal v Bartley [2025] HCA 29 (Helensburgh) adds to the challenges employers must navigate to avoid successful unfair dismissal claims arising from redundancies.

After a lengthy history of litigation and unsuccessful appeals spanning around 5 years, the High Court has effectively confirmed that employers should consider anticipated or hypothetical vacancies that will or may become available for redeployment – even if that means possibly terminating contractors and shifting their broader workforce strategy.

Redeployment – Why Does it Matter?

In short, redeployment mistakes are costly.

Section 389(2) of the Fair Work Act 2009 (Cth) (FW Act) effectively says a redundancy will not be genuine if an employee could have reasonably redeployed into the employer’s enterprise or an associated entity.

Once an employee demonstrates that they should have been redeployed, it becomes significantly easier for them to argue that their employment would have continued for at least six months.

Indeed, the case law broadly supports this. In many instances, employers who failed to offer reasonable redeployment opportunities have found themselves subject to hefty compensation or reinstatement orders (and sometimes both) following a successful unfair dismissal claim. Accordingly, the principles from the High Court’s decision in Helensburgh are important.

The Helensburgh Coal decisions

This matter began in 2020 when mining company Peabody failed to consider alternative redeployment opportunities when retrenching 24 workers from its Helensburgh coal mine. This prompted several unfair dismissal claims.

At first instance, Commissioner Riordan held that the workers could have been reasonably redeployed into roles that were occupied by contractors, Nexus and Menster (Contractors). On appeal, this decision was quashed by a Full Bench of the Fair Work Commission (FWC) and remitted back to Commissioner Riordan.

On reconsideration, the Commissioner again formed the view it was feasible to redeploy the employees into the roles being performed by the Contractors. The employer’s second appeal to a Full Bench of the FWC and judicial review to the Federal Court were both unsuccessful. The employer then appealed to the High Court.

Helensburgh High Court Decision

Here the High Court clarified the correct interpretation of section 389(2) of the FW Act, which broadly requires employers to offer reasonable redeployment opportunities to redundant staff.

In short, the High Court confirmed that the FWC can consider whether it’s reasonable for an employer to redeploy its staff by effectively ending contractors’ engagements. Put another way, work performed by contractors is fair game in the battle to preserve employment through redeployment.

Importantly, in the plurality’s Judgment consideration can be given to how an employer uses its workforce in assessing whether it would have been reasonable to redeploy a retrenched employee. This is a relatively wide ambit for inquiry. It includes not only current vacancies but also anticipated and hypothetical ones that would have been reasonable for redeployment.

In a separate Judgment, Stewart and Edelman JJ suggested that an employer’s inquiry into redeployment could stretch further into considering an employer’s “policies, processes, procedures, strategies and business choices of the enterprise, including any plans it had for the future”.

While the High Court made it clear that an employer is not expected to change the entire nature of its enterprise to accommodate redeployment (or otherwise make significant changes to accommodate the same), it’s clear that an employer’s inquiry into redeployment is not limited to current vacancies only. Much more is required. An employer must have an eye to the future regarding jobs in the pipeline or positions that could be created without making wholesale changes to the business.

Whether the High Court’s decision means employers must consider creating vacancies by terminating service provider contracts or long-term contractor arrangements remains to be seen. We will have to wait and see how this precedent is applied by the FWC in upcoming decisions.

Conclusion

Restructures have just gotten harder. Employers should now turn their minds towards anticipated vacancies and jobs performed by contractors and labour-hire staff. Prudent employer should also work performed by service providers.

The cases show that failure to redeploy where it was reasonable to do so can result in hefty compensation payments or reinstatement (and sometimes both). An employer who fails to apply the principles in Helensburgh does so at their own peril.

Adam Colquhoun (Principal) and Baldeep Singh (Law Clerk)

This article is general information only. It is not legal advice. If you need legal advice, please contact us.