By Jack de Flamingh and Johanna Rusden -
Snapshot
- Under section 389(2) of the Fair Work Act 2009 (Cth), employers must consider not only existing vacancies, but also whether reasonable changes to workforce arrangements could enable redeployment, including reassessing reliance on outsourced work and/or contractors.
- The Fair Work Commission can examine an employer’s enterprise, such as operational policies and labour practices, when determining whether a redundancy is genuine.
- Employers must demonstrate they have made comprehensive and reasonable enquiries into redeployment options, including structural adjustments.
In the recent decision of Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29, the High Court dismissed an appeal from the Full Federal Court (see our previous article, Jack de Flamingh and Ruby Divola, ‘Finding Redeployment: How Far Do Employers Need to Go?’ (July 2024) LSJ Online). In doing so, the High Court confirmed that, in assessing whether ‘it would have been reasonable in all the circumstances for [a] person to be redeployed’ for the purposes of section 389(2) of the Fair Work Act 2009 (Cth) (‘FW Act’), the Fair Work Commission (‘FWC’) may consider various attributes of the employer’s enterprise, including its operational policies, strategic business decisions, its appetite for risk and the composition of its workforce.
Background
The High Court proceedings marked the culmination of a protracted legal dispute initiated by 22 former employees following their forced redundancies from positions at the Metropolitan Coal Mine.
The judgment considered the ‘reach’ of section 389(2) of the FW Act. Section 389(2) provides that a dismissal is not a ‘genuine redundancy’ if it would have been ‘reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of employer’ .
