Redundancy and Redeployment – A Recent High Court Decision
Employers have long been under an obligation to consider redeployment before making a role redundant. A redundancy won’t be genuine if the employer could have reasonably redeployed the employee within the business or an associated entity. The tricky question is when is redeployment “reasonable”?
Last week, the High Court provided some important guidance in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29.
Background
In 2020, Helensburgh Coal retrenched 90 mine employees due to the pandemic and falling coking coal demand.
22 of those employees filed unfair dismissal claims, arguing that their dismissals weren’t genuine redundancies because they could have been redeployed into roles performed by contractors at the mine.
The Fair Work Commission agreed. On appeal, the Full Federal Court upheld that decision, saying that “reasonable redeployment” may include roles currently carried out by contractors.
The employer then appealed the decision to the High Court and the key question to be determined by the High Court was whether, when deciding if redeployment would have been reasonable in all the circumstances, the Commission could look at whether the employer might have changed the way it ran its business (for example, by ending contractor arrangements). Or was the Commission limited to the more traditional approach of only considering existing vacant roles within the business or its related entities that the employee could reasonably perform given their skills, qualifications, and experience?
The High Court’s Decision
The High Court dismissed the employer’s appeal. The Court confirmed that the Commission can look at whether employees could reasonably be redeployed into roles currently being performed by contractors.
The majority held that “all the circumstances” means just that – everything relevant to the employer’s workforce, including how it uses contractors, casuals, or labour hire.
Key points from the majority decision include:
Redeployment is not limited to existing vacancies. The Commission can look at whether there was work within the business that could reasonably have been performed by the affected employees.
The assessment is objective and is not just about what the employer prefers, but what is reasonable in light of the business as a whole.
Relevant factors include:
Vacant positions including potential vacancies due to upcoming retirements, leave or the end of contractor agreements
the terms of services agreements for the engagement of contractors to determine if there is a commitment to the provision of ongoing work to the contractor, or whether the agreement can be reasonably terminated.
the overall workforce mix and business reasons for the existing workforce structure.
Key Takeaways for Employers
When considering redundancy and redeployments:
Think beyond current vacancies including likely future vacancies or changes that could create roles.
Review contractor arrangements to check whether it’s reasonable to redeploy employees into roles being performed by contractors, especially if there’s no long-term obligation to keep contractors engaged.
Document your reasoning to show clear business and commercial justification for how you structure your workforce, including contractors and casuals.
This decision doesn’t mean employers always need to remove contractors to make way for employees because what’s “reasonable” will depend on the facts of each situation. But it does mean employers should carefully consider all redeployment options, including those that may require the business to change its structure or current engagements.
Are you considering making roles redundant? Get in touch to discuss your options with our team.