Australian High Court Issues Significant Finding on Redeployment During Redundancy

HR Policy Global perspective: In Australia, for a redundancy to be considered genuine, the employer must actively consider redeployment within the same business or an associated entity.  The High Court decision broadens the consideration of what is ‘reasonable’ in assessing redeployment opportunities and could have significant impact on employers undertaking restructures.

Background: The decision by the High Court was made in the case of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, handed down on 6 August 2025, and related to the scope of ‘reasonable redeployment’. 

The main takeaway: The Fair Work Commission (FWC) can assess if it was reasonable for an employer to restructure its workforce at the time of dismissal. Restructuring could include changing contractor arrangements to allow for employee redeployment and isn't limited to filling existing vacancies.

More specifically, the Court unanimously confirmed:

• The FWC may assess whether an employer could have “freed up” work by revising its workforce arrangements—like reducing reliance on contractors—to facilitate redeployment.
• Redeployment need not require a vacant position. It can encompass whether there was work—or a demand for work—that the redundant employee could perform, even if that work was being carried out by contractors.
• The inquiry is objective, focusing on what would have been reasonable in all the circumstances at the time of dismissal, including factors such as the employee’s attributes, the nature and structure of the enterprise, business policies and choices, training needs, and contractual arrangements.
• However, the Court cautioned that this doesn’t mean employers are required to fundamentally overhaul their operations. 

Key Actions for Employers

• Employers must go beyond looking for positions that are already vacant. They should evaluate whether redundant roles could be absorbed by reconfiguring current workforce arrangements, particularly in blended workforce models involving contractors. 

Employers should document their decision-making context, including what workforce changes were considered and whether redeployment into contractor-held roles was or wasn’t pursued (and for what reasons).