Considering Redundancies? Redeployment considerations are critical

The High Court of Australia has recently upheld a decision of the Federal Court regarding a jurisdictional dispute relating to the proposed unfair dismissal of a number of workers. In Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, the High Court found that the dismissal of 22 former employees was not a case of genuine redundancy, therefore enabling the dismissed workers to pursue unfair dismissal claims with the Fair Work Commission.

The key issue in front of the High Court was whether the Fair Work Commission (FWC) is allowed to consider whether the employer could have made changes to how it uses its workforce to operate its enterprise, including by replacing contractors with employees. The High Court found that the FWC can consider whether employees could be redeployed into positions occupied by contractors. The FWC can look at whether in the circumstances this would be reasonable and has broad powers of inquiry when doing so. In this case, the employees and contractors performed basically the same role and the contractors were engaged on an 'as needed' basis. In the circumstances, the employer should have considered employees for some of these roles and could easily reduce the reliance on contractors.

Takeaway: When undertaking redundancies, employers should look at redeployment options in a considered way, including balancing the role of contractors and employees in an organisation.