Introduction
On 6 August 2025, the High Court of Australia delivered its long-awaited judgment in Helensburgh Coal Pty Ltd v Bartley. The case has become a landmark in shaping how Helensburgh Coal redundancy redeployment is understood under the Fair Work Act 2009 (Cth). The Court clarified one of the most contested aspects of Australia’s unfair dismissal regime: what counts as a “genuine redundancy.” It confirmed that the Fair Work Commission (FWC) may consider whether redeployment could reasonably have occurred even if this required reorganising how the employer allocated work between employees and contractors.
The Background of Helensburgh Coal Redundancy Redeployment
Helensburgh Coal operated the Metropolitan Coal Mine in New South Wales. In mid-2020, the COVID-19 pandemic severely reduced global demand for coking coal. The company restructured, reducing production shifts, cutting employee numbers, and trimming its contractor workforce.
Ninety employees were affected, with 22 made forcibly redundant. At the same time, Helensburgh continued to use contractors engaged through Nexus and Mentser. The dismissed employees argued they could perform that work, while Helensburgh insisted no vacancies existed and contractor arrangements were essential to its business model. The FWC agreed with the employees, ruling the dismissals were not genuine redundancies. After two rounds of appeals before the Full Bench and judicial review in the Federal Court, Helensburgh took the matter to the High Court.
The Issues in Helensburgh Coal Redundancy Redeployment
Two main questions reached the High Court:
- Redeployment test under s 389(2): Does the FWC have authority to consider redeployment that would require reducing contractors or rearranging workforce practices, or is the test limited to filling existing vacancies?
- Standard of appellate review: Should the FWC Full Bench apply the strict “correctness” standard when reviewing redundancy decisions, or the deferential House v The King standard that allows primary decision-makers a margin of discretion?
The High Court’s Reasoning on Helensburgh Coal Redundancy Redeployment
Broad meaning of “redeploy”
The Court rejected Helensburgh’s narrow construction. It held that the word “redeploy” means to reorganise or transfer, not merely to place someone into a vacant position. Section 389(2) uses wide terms and requires consideration of whether redeployment would have been reasonable in all the circumstances. That inquiry may include whether the employer could have insourced contractor work to provide ongoing employment.
Limits of the enterprise
At the same time, the Court made clear that the FWC cannot require an employer to alter the essential nature of its business. The “enterprise” is defined by its business, activity, project, or undertaking as at the date of dismissal. The Commission may consider workforce composition, policies, contract terms, and future plans, but it cannot force a transformation of the enterprise itself.
The reasonableness inquiry
Reasonableness is assessed objectively, balancing both employer and employee perspectives. The FWC may weigh factors such as skills, training requirements, contract flexibility, cost, efficiency, and operational risk. Crucially, “all the circumstances” is a broad standard that avoids rigid rules.
Appellate review
On the second issue, the Court declined to resolve whether correctness or House v The King applies. Instead, it emphasised that even if the Full Bench applied the wrong standard, such an error would be within jurisdiction, not a jurisdictional error. This rule prevents parties from using judicial review to re-litigate the merits of redundancy determinations.
Doctrinal Significance
This case marks a decisive shift in Australian redundancy law. It confirms that s 389(2) does not confine the inquiry to checking whether vacancies exist. Instead, it empowers the FWC to test whether, at the time of dismissal, the employer could reasonably have reorganised its workforce to avoid redundancies.
The decision strengthens the protective nature of the Fair Work Act. It aligns with its object of providing a “fair go all round.” It also reflects a broader policy direction. The law has shifted away from the rigid employer prerogative of the Work Choices era. It now promotes a more balanced and employee-protective framework.
Practical Implications
For Employers:
- Redundancy processes must now include documented consideration of redeployment through contractor substitution or insourcing.
- Simply pointing to the absence of vacancies will not suffice. Employers must show they actively explored and rejected redeployment options for sound, evidence-based reasons.
- Employers should update consultation records and internal memoranda to reflect this broader obligation.
For Employees and Unions:
- Employees can challenge redundancies more effectively when they question whether employees could reasonably have performed contractor work
- Unions are likely to use this decision as a basis for negotiating redeployment rights in enterprise agreements.
For the FWC:
- The decision affirms the Commission’s authority to conduct a broad, contextual inquiry into redundancy disputes.
- It also reinforces the Commission’s specialist role, with judicial review confined to true jurisdictional errors rather than evaluative disagreements.
Conclusion
The High Court’s ruling in Helensburgh Coal Pty Ltd v Bartley expands the meaning of redeployment under s 389(2) of the Fair Work Act. Employers can no longer treat redundancy as a matter of “no jobs available.” Instead, they must demonstrate that they considered whether it would have been reasonable to reorganise their workforce, including contractor arrangements, to keep employees in work.
This decision represents a significant doctrinal development: it both respects the limits of an employer’s enterprise and imposes a genuine obligation to explore redeployment in all its practical dimensions. In doing so, the High Court has ensured that redundancy law in Australia continues to reflect its central promise—a fair balance between the needs of business and the rights of employees.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
