Understanding the High Court’s interpretation of genuine redundancy

On 6 August 2025, the High Court finally put a finality to five years of contested proceedings concerning the meaning of ‘genuine redundancy’ under the Fair Work Act 2009 (Cth) (FW Act) in the case of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29.

Here, our experts break down the case and explain the High Court’s decision.

Statutory framework

Section 389 of the FW Act states that a dismissal will be considered to be a genuine redundancy if:

1. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

Section 389(2) further states that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the employee to be redeployed within:

1. the employer’s enterprise; or
2. the enterprise of an associated entity of the employer.

History of the case

In 2020, Helensburgh Coal restructured its operations due to a downturn in business because of the COVID-19 pandemic, which saw it make 47 employees redundant. Helensburgh Coal continued to engage contractors at the mine to perform similar functions to some of the redundant roles.

22 employees subsequently filed unfair dismissal claims alleging that their dismissals were not cases of a genuine redundancy since it would have been reasonable for Helensburgh Coal to redeploy them into positions being performed by contractors.

Commissioner Riordan of the Fair Work Commission (FWC) agreed with the employees, finding that their dismissal was not a case of a genuine redundancy on the basis that it would have been reasonable in all the circumstances for the employees to be redeployed into roles that were being performed by contractors at the time of their termination. The FWC determined that the work performed by the contractors was not specialist work and it would have been reasonable in the circumstances to redeploy the employees to perform the work (which would have ceased the engagement of the contractors).

Helensburgh Coal appealed the initial decision to the Full Bench of the FWC, and the Full Bench remitted the matter back to Commissioner Riordan due to a technicality.

Commissioner Riordan was required to consider whether it “would have been reasonable in all of the circumstances for the employees to be redeployed.” Commissioner Riordan then determined that it was feasible for Helensburgh Coal to insource some of the work of the contractors, such that the employees did not have to be made redundant.

Helensburgh Coal once again appealed to the Full Bench, who dismissed the appeal.  Helensburgh Coal then appealed to the Full Court of the Federal Court. Helensburgh Coal’s appeal centred around the contention that the FWC erred by considering that it could have restructured its operations to replace its current contractors with employees. Helensburgh Coal argued that the definition of genuine redundancy in the FW Act did not permit such a hypothetical analysis. The Full Federal Court dismissed the appeal, stating that due to the “undeniable width” of s 389 of the FW Act, there was no reason to disregard “the possibility that an employer might free up work for its employees by reducing its reliance upon external providers.”

The High Court decision

In a final attempt to overturn the FWC decision, Helensburgh Coal sought special leave to appeal to the High Court.

The High Court appeal proceeded on two grounds:

1. whether the FWC could consider hypothetical changes to workforce operations when assessing redeployment options under s 389(2) of the FW Act; and
2. whether the FWC applied an appropriate appellate review standard.

The High Court decided that it was unnecessary to consider on the correctness of the standard of review applied by the Full Court of the Federal Court and focused its attention on the first ground of appeal.

The High Court unanimously dismissed the appeal, finding that the FWC was entitled to consider whether it would have been reasonable for Helensburgh Coal to make changes to how it structured its workforce, including insourcing work performed by contractors.

The High Court confirmed that: “the language of s 389 does not prohibit asking whether an employer could have made changes to how it uses its workforce to operate its enterprise so as to create or make available a position for a person who would otherwise have been redundant. None of the statutory language, context or purpose supports such a proscriptive rule.”

In reaching this conclusion, the High Court commented that when considering redeployment, an employer does not need to consider only if there is a ‘vacant position’, but whether there is work within their enterprise that an employee who would otherwise be made redundant could perform. Such a consideration extends to considering whether any changes could be made to an employer’s enterprise to create or make available a position for an otherwise redundant employee. This includes the possibility of redeploying employees into roles currently being performed by contractors.

The key principles confirmed by the High Court were:

1. when determining whether it is reasonable to redeploy an employee in all of the circumstances, the FWC can consider whether an employer is able to make changes to its operations within its enterprise (including considering whether outsourced work could be insourced). However, FWC cannot disregard the nature of an employer’s enterprise and cannot disregard the effect such an operational change may have on the enterprise;
2. the language of section 389(2) allows for broad consideration, including whether an employer could make changes to its enterprise when deciding whether it would have been reasonable for the person to be redeployed within the employer’s enterprise.

Key takeaways for employers

The High Court had made it clear that employers will need to consider whether changes can be made to redeploy an otherwise redundant employee into another position, including where work is being performed by contractors.

Employers undergoing a redundancy process should:

1. not only consider vacant positions when considering redeployment options, but also consider whether redundant employees could reasonably be redeployed to perform available work more generally, including by adjusting contractor arrangements;
2. when considering whether redeployment would have been reasonable in ‘all the circumstances’, an employer should consider the nature of their actual enterprise, including its workforce strategies, future planning and contractor usage to determine whether changes could be made to the enterprise to allow for an otherwise redundant employee to be redeployed; and
3. if it is unreasonable in the circumstances to make such a structural change to the employer’s enterprise, this should be documented, including the reasons why such a change was not feasible.

It remains the case that if it would be unreasonable to make a structural change to facilitate a redeployment opportunity, then it would not be expected to be reasonable in the circumstances to redeploy an employee into another role. For example, if removing contractor-held positions would disrupt a business in terms of efficiencies, operating costs or productivity, then it would not be reasonable in such circumstances to replace the contractors with employees.

Given the implications of the High Court decision, it is prudent that employers seek legal advice when undergoing a redundancy process to navigate the intricacies of the expanded considerations of reasonable redeployment.

If any of this information has raised questions about genuine redundancy, unfair dismissal, and your obligations, or you have another workplace matter with which you need assistance, please reach out to the Citation Legal team for a confidential discussion.

About our author

Amanda Curatore is a qualified Solicitor and Senior Associate at Citation Legal. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters, including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk.