Redundancy Case Update - What Employers Need to Know

If your business is thinking about a restructure, a recent High Court decision matters to you—even if you’re not a big company. In Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 (6 August 2025), the High Court clarified how “genuine redundancy” is assessed under the Fair Work Act 2009 (Cth), particularly the obligation to consider redeployment.

The decision in plain English

The case arose from a downturn that led a coal mining business to dismiss employees and reduce contractor use. Some dismissed workers brought unfair dismissal claims.

The employer argued the dismissals were “genuine redundancies,” which—if established—provides a complete jurisdictional defence to unfair dismissal.

The High Court confirmed that when deciding whether a redundancy is “genuine,” the Fair Work Commission (FWC) may look beyond whether there was a vacant position at the time. It can consider whether it would have been reasonable for the employer to make changes to how it uses its workforce, including insourcing work being performed by contractors, to enable redeployment within the enterprise (or an associated entity).

In short: the redeployment inquiry is not limited to slots that happen to be open. In appropriate cases, it can include reasonable changes to staffing arrangements to create a pathway to redeploy affected employees.

What this means for employers

To rely on the “genuine redundancy” defence, you still need to satisfy all three limbs of section 389:

1)    the job is no longer required due to operational change,

2)    any applicable consultation obligations (e.g., under an award) have been met, and

3)    it was not reasonable to redeploy the employee within your enterprise or an associated entity.

Key Takeaways

Think about contractors and labour hire roles. If work is being done by external providers, ask whether, in your circumstances, it would be reasonable to bring some of that work back in-house to redeploy an at-risk employee.

“Reasonable” is contextual. It does not require you to do the impossible, but you should engage with options such as modest reorganisation, task reallocation, timing of natural attrition, limited training/upskilling, and short transition arrangements.

Good records are critical. The FWC can examine what you considered and why. Document your options analysis and the reasons certain redeployment pathways were not viable.

Practical steps before you issue redundancy notices

Map your workforce: employees, contractors, and labour hire roles (duties, locations, rosters).

Identify capability matches and what training (if any) would make a redeployment reasonable.

Scenario test insourcing: where could contractor tasks be reasonably reassigned to employees?

Consult properly and early under any applicable industrial instrument.

Offer suitable roles (including short-term or trial redeployments) where reasonable.

Keep a decision log showing the options you considered and your commercial and operational reasons.

How MDL can help

We offer a redundancy audit tailored for employers:

1)    A fast-turn review of your workforce, including contractor arrangements, and associated entities to identify practical redeployment options.

2)    A “reasonable steps” roadmap aligned with section 389, including training and transition plans.

3)    A documentation toolkit (consultation notices, redeployment matrices, offer templates, and decision records) designed to withstand FWC scrutiny.

4)    On-call guidance during consultation to help you navigate questions in real time.

If you’re planning a restructure—or want to sense-check one already underway—contact us. We can help you achieve your operational goals while reducing unfair dismissal risk and preserving workplace trust.

If you’d like practical, plain‑English advice that fits the realities of your business, we’re here to help. We work with owners and managers every day to balance operational needs with compliance. Contact our employment law team to talk through your situation and the best next steps for your business.

This article is general information, not legal advice. Get advice tailored to your business and workforce.