A recent High Court decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 has reshaped how employers must approach redeployment when relying on the “genuine redundancy” defence to an unfair dismissal claim. The Court held that, in some cases, it may be reasonable and necessary for an employer to consider whether a redundant employee could perform work currently being done by contractors.

This means employers can no longer take a purely static view of their organisation—simply checking whether there are vacant roles is no longer enough. Instead, a broader and more dynamic assessment is required, one that considers whether operational adjustments or reductions in contractor use might make redeployment possible.

The Case in Context

Helensburgh Coal faced a COVID-related downturn in 2020, cutting 90 employees while retaining a similar number of contractors. The dismissed workers challenged their terminations, arguing that they could have been redeployed into roles held by contractors. After multiple rounds through the Fair Work Commission (FWC) and the Federal Court, the High Court confirmed that redeployment inquiries must consider whether contractor work could reasonably have been offered to employees.

Redefining “Reasonable Redeployment”

The Court clarified that while employers alone decide what roles are required and what operational changes to make, the FWC has a broad remit to evaluate whether the employer genuinely explored redeployment options. Importantly, redeployment does not require a vacant position—it may involve reasonable changes to how the business operates, including the insourcing of contractor work.

This interpretation of “all the circumstances” under section 389(2) of the Fair Work Act 2009 (Cth) means employers must now look beyond existing vacancies to consider:

• Whether contractors could be displaced or reduced.
• The nature and duration of contractor engagements.
• Forthcoming operational or staffing changes.

What Employers Should Do Now

Employers planning restructures must adopt a creative and evidence-based approach to redeployment. Simply providing redundant employees with a list of available jobs may no longer meet the statutory standard. Instead, businesses should document the reasoning behind decisions about contractor use, workforce composition, and operational needs.

At Performance Advantage, we help employers navigate these complex redeployment and redundancy obligations with clarity and confidence.

📞 Contact us today to ensure your restructuring and redundancy processes align with the latest High Court guidance — and to protect your business from unfair dismissal risks.

You can reach us on 0408 897 079 or at suzanne@performanceadvantage.com.au. We look forward to hearing from you!

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