Employers will need to take a nuanced approach to redeployment after a recent High Court decision
In considering the scope of redeployment obligations that must be met to engage the “genuine redundancy” defence to an unfair dismissal claim, the High Court has unanimously held that it may be reasonable and necessary for an employer to consider whether the employee could perform a contractor’s work.
In reaching this conclusion in Helensburgh Coal Pty Ltd v. Bartley, [2025] HCA 29, the majority expressed a clear view that employers should not simply take a static view of their organisation to see whether there are any currently vacant and suitable roles, as this would be an impermissibly narrow approach. This reasoning may have implications stretching beyond circumstances involving the use of contractors.
In 2020, Helensburgh Coal Pty Ltd faced a downturn due to COVID-19. To adapt, it scaled back its mining operations, meaning that fewer workers were needed. During redundancy consultations, employees asked Helensburgh Coal to reduce its reliance on contractors from Nexus Mining Pty Ltd and Mentser Pty Ltd in order to preserve direct hire employees. Helensburgh Coal went ahead with the restructure and cut its direct workforce by 90 employees, but it continued to engage 90 Nexus and eight Mentser contractors at the mine.
Twenty-two of the dismissed employees brought unfair dismissal applications in the Fair Work Commission (FWC). Helensburgh Coal objected to each of the...
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