The obligations of employers to try and redeploy employees whose roles had been identified for redundancy before their employment is terminated has been a live issue for some time.  It is well known that employers need to carefully consider redeployment options before proceeding with termination of employment, in circumstances where an employee may seek to challenge their dismissal through an unfair dismissal claim. If such a claim is pursued, an employer needs to satisfy the Fair Work Commission that the employee’s employment ceased due to ‘genuine redundancy’ which won’t be the case if it would have been reasonable in all of the circumstances to redeploy an impacted employee within the employer’s enterprise, or that of an associated entity. As is so often the case though, the question is in what circumstances will redeployment be required because it would be “reasonable”?

This question was considered by the High Court in the recent case of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. 

Background 

In June 2020, following the onset of the COVID-19 pandemic and reduced demand for coking coal, Helensburgh Coal Pty Ltd retrenched 90 employees who worked at its coal mine. 22 of those employees subsequently brought unfair dismissal claims, alleging that their dismissals were not cases of genuine redundancy because it was reasonable for Helensburgh Coal to redeploy them to roles at the mine that were being performed by employees of two contractors which Helensburgh had engaged to undertake work at the mine. 

The Commission found in favour of the employees, deciding that it was at least feasible for  Helensburgh Coal to redeploy some workers to roles performed by employees of contractors. On appeal, the Full Court of the Federal Court was not satisfied that the Commission had erred, finding that, when considering what was reasonable in all the circumstances, a relevant consideration is whether roles currently performed by contractors’ employees might be given to the company’s own employees whose roles were no longer required.

Helensburgh Coal appealed that decision and the principal question for the High Court became whether, in undertaking the inquiry as to whether it would have been reasonable in all the circumstances for a person to be redeployed within the employer’s enterprise, the Commission could consider whether the employer could have made changes to how it operated its business (including for example, by ending existing arrangements with contractors). Or should the enquiry be limited to the traditional understanding that an employer is only required to consider vacant roles within its own business and that of related entities, which the employee could reasonably perform with regard to their skills, qualifications and experience?

The High Court’s decision

The High Court unanimously dismissed Helensburgh Coal’s appeal, finding that the Commission was indeed entitled to enquire into whether Helensburgh Coal’s employees whose roles were made redundant could be redeployed into positions currently performed by  contractors and/or their employees.  

In their majority judgment, Gageler CJ, Gordon and Beech-Jones JJ, found that, in determining whether it would have been reasonable in all the circumstances to redeploy an impacted employee within the employer’s enterprise, the Commission can have regard to whether an employer could have made changes to how it uses its workforce (such as by using contractors instead of direct employment) so as to create or make available a position for a person who would otherwise have been redundant. “All the circumstances” means just that - all the attributes of the employer's enterprise that concern its workforce.

In particular, their Honours noted that the enquiry directs the Commission to ask what, at the time of the dismissal, could have been done to redeploy the employee within the employer's enterprise. Reasonable consideration of redeployment opportunities is not limited to only vacant positions, but also whether there was work, or a demand for work, within the employer's enterprise that could be performed by the otherwise redundant employees. What is reasonable is not only to be determined through the lens of the employer, but is an objective and broad enquiry to be determined by the Commission with regard to the nature of that enterprise in all of the circumstances. 

In particular, consideration of reasonable redeployment “in all the circumstances” includes consideration of:

• any future plans or anticipated changes to the employer’s business, such as whether any current employee might be going on leave or retiring soon, or whether a contractor/labour hire agreement will soon expire or might be terminated;
• the terms of any service contracts, such as whether they are an as needs basis or whether the contractors are on daily work orders or on some long-term fixed commitment;
• the nature of an employer’s workforce, such as the composition of permanent employees, casual hires, and contractors, and the business and commercial rationale for its use of labour (including any documented policies, plans, processes or procedures); and
• the employer’s broader approach to business and risk-taking. 

In a separate judgment, Edelman J took a narrower view of an employer’s reasonable redeployment obligations finding that the Commission is not entitled to consider possible redeployment if it would require significant changes to an employer’s enterprise. 

In his reasons, Steward J aligned with the majority judgment and made it clear that the Commission was authorised to inquire into whether Helensburgh Coal could have made alternative changes to its enterprise so as to create or make available positions for the impacted employees. However, his Honour noted that the High Court was not being asked to consider whether the Commission was correct in finding that redeployment was reasonable. In this regard, his Honour observed that ordinarily “it would be difficult to conclude that redeployment is reasonable if that meant that another person with a job, for which there is a business need, has to make way for someone else whose job was no longer needed.” 

Having found that the dismissals were not a “genuine redundancy”, the matter is expected to return to the Commission for a final decision as to whether the dismissals were unfair. 

Key take-aways for employers: 

When considering redeployment options, employers must:

• Consider not only current vacant positions, but also consider potential vacant positions which may arise in the near future or vacancies that could exist if the employer made some further operational changes to minimise the impact of the restructure on existing employees. Employers are not required to create new roles or offer redeployment into roles where an employer has determined that the employee would be unsuitable for a role which may be or may become vacant.
• Review the terms of the services agreements under which contractors are engaged and the nature of the work being performed by those contracted workers to determine if redeployment of employees to roles currently performed by outsourced workers is reasonable. For example, where there is no contractual obligation on the employer to provide contractors and/or their employees with ongoing work, removing them in favour of redeploying its own workers will be more likely considered reasonable.  
• Carefully consider the commercial and business rationale behind the existing workforce structure (such as the use of contractors or casual labour), and associated policies and practices. For example, where there are clear commercial benefits to the use of contractors, and a documented policy or practice that supports the ongoing use of contractors on that basis, displacing them in favour of redeployment might not be considered reasonable. 

The bottom line is that “all the circumstances” is broader than previously thought, and now includes “circumstances” that might have previously been thought to impinge upon managerial prerogative. “All the circumstances” means just that, so the way a business uses labour hire or contractors and their employees is included for consideration. The decision though does not mean reasonable redeployment will always require any particular step such as the removal of contingent workers in favour of redeployed employees. As always, what is reasonable will vary according to the circumstances of each case. What is necessary though is a reasoned and reasonable documented consideration of all the options for redeployment.