In "Where does it end?” we looked at the decision of the Full Federal Court of Australia (Full Federal Court) in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45. In that decision, the Full Federal Court refused an application from an employer seeking orders to quash previous decisions and compel the Fair Work Commission (FWC) from further dealing with unfair dismissal applications lodged by employees who had been made redundant.
The employees were employed by Helensburgh Coal Pty Ltd (the Employer). During the COVID-19 pandemic, the Employer restructured its operations at its mine which resulted in the dismissal of 22 employees as a result of a redundancy. The employees submitted that their redundancies were not genuine as they could have been redeployed into the roles which had been outsourced to be performed by contractors.
In the FWC proceedings, the Full Bench of the FWC upheld the decision of Commissioner Riordan that the dismissal of the 22 employees was not a genuine redundancy, because the employees could have been reasonably redeployed into the roles performed by the external contractors.
In refusing the employer’s appeal, the Full Federal Court found that the FWC correctly applied the assessment required under s389(2) of the Fair Work Act 2009 (Cth) (FW Act).
The next instalment of the matter concerned an appeal to the High Court of Australia (HCA) by the Employer in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. The relevant issue was the scope of inquiry required by ss389(2) of the FW Act.
Section 389 of the FW Act provides the definition of a “genuine redundancy”. Subsection 389(1) provides that a dismissal will be a genuine redundancy if:
The HCA noted that ss389(1) concerned the decision of the employer and did not require any consideration of whether the decision was reasonable.
Subsection 389(2) however provides that a dismissal would not be a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or an enterprise of the employer’s associated entity.
The Employer submitted that ss389(2) did not permit the FWC to consider whether an employer could have made changes to its enterprise to create or make positions available for the employee who would be otherwise made redundant.
The HCA disagreed with the restricted approach to the scope of the inquiry in ss389(2) sought by the Employer. The HCA held that there was no such limitation in the language, context or purpose of s389 and noted that unlike ss 389(1), ss 389(2) requires the FWC to make an enquiry as to what was “reasonable in all of the circumstances” in relation to the employer’s enterprise.
In the joint decision of Chief Justice Gageler and Justices Gordon and Beech-Jones, it was noted at[37] that:
The hypothetical inquiry under s 389(2) therefore asks what, at the time of the dismissal, could have been done to redeploy the employee within the employer’s enterprise. In other words, would it, at the time of the dismissal, have been reasonable to redeploy the employee to perform other work within the employer’s enterprise.
Gageler CJ and Gordon and Beech-Jones JJ further considered that “all of the circumstances” referred to the circumstances of both the employee, such as their skills, experience and training and the employer’s enterprise that concern the workforce such as its business choices for example decisions to continue using contractors, the makeup of its workforce and the engagement of contractors.
Gageler CJ and Gordon and Beech-Jones JJ considered that this approach was consistent with the statutory context and history of section 389 of the FW Act.
Justice Edelman agreed with the definition provided by Stewart J of the “employer’s enterprise” and stated that the FWC had no authority to consider whether redeployment was reasonable if that would involve a significant change such that there would be a change in the employer’s enterprise at the dismissal.
However, for Edelman J, the circumstances of this case was such that there were jobs available into which the employees could have been redeployed without any change in the Employer’s enterprise at the dismissal date In particular, the contractors supplied to the Employer were on “as needed” basis and there was no continuing obligation for the Employer to request the contractors. Edelman J also noted that in the previous proceedings, it has been found that the Employer was not opposed to insourcing the work performed by the contractors.
For Edelman J, it was open to the FWC and the Full Bench to consider whether the redeployment of the employees within the Employer’s enterprise would have been reasonable in all of the circumstances.
Similarly, Stewart J dismissed the Employer’s appeal, finding that the FWC has authority to inquire whether an employer could make changes to its enterprise to make or create a position for an employee who would otherwise be redundant.
The HCA has now confirmed the scope of the redeployment obligation placed on employers. Specifically, it is not enough for an employer to only consider vacant roles - in some circumstances a broader review may be required, including whether it is reasonable to make changes in the employer’s enterprise to create or make jobs available for an employee who may be made redundant.
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