On 6 August 2025, the High Court in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 confirmed that the Fair Work Commission may look beyond existing vacancies and ask whether an employer could reasonably have reshaped the workforce to retain at-risk employees. The Court dismissed Helensburgh Coal’s appeal.

What changed?

When assessing “genuine redundancy” under s 389 of the Fair Work Act, the redeployment enquiry is broader than many assumed. The Commission may consider whether it would have been reasonable to:

• Redeploy an employee into work being done by independent contractors, and
• Adjust how the enterprise uses its workforce – for example, by insourcing contracted work or reconfiguring roles, to create or make available a suitable position.

What this means in practice

If you are restructuring, do not stop at listing internal vacancies. Document a good-faith redeployment assessment that considers:

• Whether contracted tasks could be performed by employees at risk (with reasonable training if needed).
• What operational changes (roster, shift patterns, team structures, or insourcing) could reasonably create a role for an affected employee.
• Why particular options were, or were not, reasonable in the circumstances (cost, safety, skills, timing, and business needs).

This ruling does not require contractors to be replaced in every case. It does require employers to turn their minds to insourcing or workforce adjustments where reasonable, and to keep evidence of that analysis. Expect closer scrutiny of redundancy decisions and a higher bar for proving “genuine redundancy.”

If you are planning a restructure or need to test recent redundancy decisions against this precedent, contact Brenton Priestley, Partner, or Sini Popovic, Senior Associate.

This information is general in nature and does not constitute legal advice.