Imagine making what you thought was a watertight redundancy decision only to have the High Court declare it invalid years later.
That’s exactly what happened in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, where the nation’s highest court confirmed that “genuine redundancy” isn’t just about whether jobs exist. It’s about whether employers could and should have restructured their workforce even cutting contractors to make room for redeployment.
For HR teams, this ruling sends a powerful message: redundancy planning just became a whole lot riskier.
Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29
In a decision with profound implications for workforce restructuring, the High Court of Australia has confirmed that redundancy decisions must extend beyond mere headcount.
In Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29, the High Court upheld earlier findings by the Fair Work Commission (FWC) and the Full Federal Court that the dismissal of 22 miners was not a “genuine redundancy” under the Fair Work Act 2009 (Cth).
In earlier decisions, it was found that the Employer was utilising contractors to perform work at the mine. Unfair dismissal applications were argued as it would have been reasonable for the employees to be redeployed to perform tasks handled by contractors. That is, the redundancies were not genuine.
Notably, the High Court affirmed that the FWC may assess whether it would have been reasonable for an employer to restructure its workforce, including reducing reliance on contractors to create redeployment opportunities for permanent staff.
Decision Timeline and Legal Context
Fair Work Commission (Commissioner Riordan)
Commissioner Riordan found that the redundancies were not genuine under s 389(2) of the Fair Work Act, because permanent employees could have been redeployed to perform work handled by contractors Nexus and Mentser. The commissioner considered:
- employee skills,
- need for training, and
- operational practicality of insourcing.
Full Bench of the FWC
The Full Bench upheld those decisions, explicitly recognising that a vacant position is not required for redeployment to be reasonable.
It held that even roles currently held by contractors may be considered if employees are capable of assuming them with reasonable training.
Full Federal Court (FCAFC 45, April 2024)
The Federal Court dismissed Helensburgh’s application for judicial review. It confirmed that s 389(2) requires consideration of what the employer could have done, including redeployment into roles currently performed by contractors or soon to be vacant positions.
High Court of Australia (HCA 29, August 2025)
The High Court refused the employer’s third appeal, affirming each earlier level’s ruling: the FWC and courts were correct to evaluate redeployment into contractor filled roles as within the test of reasonableness under s 389(2).
Key Legal Principles from the Decision
- Reasonable Redeployment Includes Contractor Roles
The decisions stretch the meaning of “reasonable in all the circumstances” to include the possibility of redeployment into contractor occupied positions, so long as permanent employees can reasonably do the tasks, potentially with minimal training.
- Vacancies Not Required
The Full Bench emphasised that redeployment need not be limited to roles that are already vacant. It may include positions that are at the moment filled by external service providers.
- “What Could Have Been Done…” Test
The Federal Court underscored that assessing a redundancy is not just what roles were available, but also what the employer could have done such as ending or restructuring contracts with service providers to create space for employees.
- FWC’s Broad Discretion Under Section 389(2)
The High Court confirmed the FWC’s wide authority to weigh all relevant circumstances in deciding what is reasonable. This discretion encompasses evaluating workforce structures beyond existing vacancies including operational structures, training feasibility, and contract arrangements
What This Means for HR and Workforce Planning
- Redundancy planning must include contractor roles. If permanent employees can feasibly perform contracted tasks, redeployment needs to be considered.
- Document redeployment assessments thoroughly. This may include skills audits, training needs, feasibility of ending contracts, stakeholder consultation.
- Consult actively and honestly. Employee or union suggestions even around reducing contractor use must be taken seriously and recorded.
- Look ahead to imminent role changes, such as contract expiry or foreseeable retirements, to evaluate redeployment potential.
- Prepare for heightened dispute risk. The ruling encourages challenges to redundancy decisions where outsourcing or labour hire continues.
Final Thought
Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 marks a turning point in Australian employment law: restructuring and redundancy decisions must go beyond surface level headcount analysis.
HR must now engage with legal, operational, and workforce strategy considerations to ensure compliance in an outsourcing heavy business environment.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on restructuring and redundancy decision making and planning to protect HR teams and Employers.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
