Meet Kim, a Chief Human Resources Officer for a national logistics firm. Her executive team just approved a major restructure designed to improve efficiency and protect the bottom line amidst fierce market competition. The plan involved making twenty well-defined roles redundant while continuing to use a highly effective team of contractors for a specialised logistics function. For Sarah, this seemed like a standard but also felt like redeployment, albeit a difficult process, she had managed many times before.
That was until her legal counsel flagged the recent High Court decision in Helensburgh Coal. The case presented a challenge she hadn’t anticipated, turning a straightforward redundancy process into a complex test of organisational strategy and the very definition of redeployment. The pressure from the CFO to execute the cost-saving restructure was immense, but the risk of multiple unfair dismissal claims now loomed large, threatening to erode any financial gains and damage their employer brand. There should be fair work redeployment.
Problems for HR Leaders
The problem for many HR leaders like Sarah is this hidden risk in employee redundancy, what was once common practice. The assumption that redundancies are ‘genuine’ simply because a specific job no longer exists is now under intense scrutiny.
The Fair Work Commission can now closely examine a company’s entire workforce structure, including contractors. The solution lies in a deep understanding of this new precedent and building a defensible, people-first approach to organisational change, where redeployment is a core strategic consideration, not an administrative afterthought.
What is Redeployment?
Historically, redeployment was understood through a narrow lens: the act of moving an employee into an existing, vacant position within the business. It was a reactive process of matching a person to an empty box on an organisational chart.
However, the High Court’s decision has effectively shattered this limited view, demanding a more creative and expansive approach. True redeployment now requires a proactive assessment of whether a role could be created for an employee whose position is redundant.
Beyond the Vacancy Mindset
This represents a fundamental shift from a “job-centric” to a “work-centric” model. A job-centric view asks, “Do we have an open vacancy for this person?” A work-centric approach asks, “What work needs to be done across our enterprise, and could this person, perhaps with some training, do it?” This involves looking at the tasks and functions being performed across the business, not just the formal job titles that are advertised.
Consider a practical example. A company makes an experienced administrative officer’s role redundant due to workflow automation. Simultaneously, the company pays a monthly retainer to an external contractor for social media coordination and content scheduling. The traditional approach to redeployment would find no vacancy and proceed with termination.
Reasonable in the Circumstances
The entire legal test of a genuine redundancy hinges on that pivotal phrase from the Fair Work Act: whether finding a new role “would have been reasonable in all the circumstances.” This phrase is intentionally broad, granting the Fair Work Commission wide discretion to investigate the facts of each case.
The High Court’s ruling confirms this allows a deep inquiry into whether an employer could have altered its operational arrangements, such as reducing its reliance on contractors, to retain an employee. A failure to thoughtfully consider this type of redeployment can be fatal to a genuine redundancy defence.
Factors the Commission Considers
When assessing reasonableness, the Commission will not act as an armchair CEO and force an employer to change the fundamental nature of its business. However, it will meticulously weigh a range of factors to determine if the employer’s efforts, or lack thereof, were adequate. These factors include:
- Employee’s Skills and Experience: How closely do the employee’s existing skills align with the work being performed in another part of the business, including by contractors?
- Training Requirements: What is the nature, cost, and duration of the training required to make the redeployment successful? A two-day software course is highly reasonable; a two-year specialised degree is likely not.
- Location: Is the alternative role located in another office, city, or state? The Commission will consider the employee’s personal circumstances and whether requiring relocation is a reasonable proposition.
- Remuneration and Status: A reasonable redeployment does not have to be a perfect match in salary and seniority. However, an offer of a substantially lower-paid or lower-status role may be deemed unreasonable, effectively a demotion.
- Impact on the Business: The employer has the right to argue that a proposed redeployment would be operationally unworkable or would fundamentally disrupt its established business model. This must be supported by clear evidence, not just assertions.
When Does Redeployment Apply?
The obligation to consider redeployment is a critical, non-negotiable component of a “genuine redundancy” under the Fair Work Act. A dismissal will fail the genuine redundancy test if a reasonable redeployment opportunity exists. This applies to all national system employers in Australia, regardless of size or industry. The process must be undertaken before any termination is finalised. It is a mandatory step, not an optional courtesy.
The Reach of “Associated Entities”
A frequently overlooked aspect of the legislation is that the search for redeployment opportunities is not confined to the direct employing company. The law explicitly requires employers to consider positions within their own “enterprise or an associated entity.” For large corporations, this means the search must extend to parent companies, subsidiaries, and other related corporate bodies within the group.
This presents a practical challenge, requiring HR leaders to have visibility and cooperation across different business units that may operate with considerable autonomy. A siloed approach to redeployment is no longer legally sufficient.
The 4 Steps of the Redeployment Process
Navigating this complex legal and operational landscape requires a structured, transparent, and defensible process. By moving from uncertainty to a clear plan, you can protect your organisation and treat your people with fairness and respect.
1. Broaden the Search
First, you must move beyond a simple scan of current vacancies on your careers portal. The initial step is to create a comprehensive “Workforce Opportunity Register.” This register should map all work being performed within your enterprise and its associated entities. This includes roles filled by permanent staff, fixed-term employees, casuals, and, most critically, labour hire or independent contractors. This paints a complete picture of all work being done and forms the foundation of your redeployment assessment.
2. Identify Potential Matches
Second, with this comprehensive map, you can begin to analyse the skills, qualifications, and experience of the at-risk employees. This exercise should not be a rigid “tick-the-box” comparison. Use skills matrices and talent management software to identify not just direct skill matches but also adjacent skills. Look for employees who possess the core competencies that would allow them to pivot into a different role with a reasonable amount of training. Document every potential match you consider, even those you later dismiss, as this demonstrates a thorough process.
3. Consult Meaningfully
Third, and perhaps most importantly, engage in genuine and meaningful consultation with the affected employees. A generic email is not a consultation. This requires structured, two-way conversations where you present the potential options you have identified and, critically, are open to their suggestions.
Ask questions like, “Are there other roles or types of work in the business you believe you could perform?” or “What are your aspirations for training and development?” This collaborative approach to redeployment is not only a legal requirement but also a powerful way to maintain trust.
4. Document Your Rationale
Finally, for every potential option, you must meticulously document your decision-making process. This creates a defensible record that can be produced if a dismissal is challenged. If you determine a specific redeployment is not reasonable, you must have clear, business-based reasons.
Your file note should include the consultation notes, a cost-benefit analysis of required training, and the operational rationale for why a particular pathway was not feasible. A lack of clear documentation is one of the biggest vulnerabilities in an unfair dismissal claim related to redundancy.
Fair Work Act Redeployment
The legal foundation for this entire process is section 389(2) of the Fair Work Act 2009. The landmark decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 did not invent a new law but powerfully clarified the wide scope of this existing provision. It serves as a clear signal that the Fair Work Commission is entitled to, and will, test whether an employer’s decision not to pursue a potential redeployment into a contractor’s role was a reasonable one.
Proactive Redeployment as a Talent Strategy
While the legal imperative is clear, the most forward-thinking organisations view redeployment not as a compliance burden, but as a strategic talent management tool. An effective internal redeployment program helps retain valuable institutional knowledge, reduces recruitment and onboarding costs, and improves overall employee morale and engagement.
By demonstrating a genuine commitment to finding new roles for your people, you strengthen your employer value proposition and build a resilient workforce capable of adapting to change. This strategic approach to redeployment is a hallmark of sophisticated human resources leadership.
Challenges and Pitfalls to Avoid in Redeployment
Even with the best intentions, the redeployment process can be fraught with potential missteps. Being aware of these common pitfalls can help ensure your process is both fair and legally compliant.
- The Token Offer: Avoid making a clearly unsuitable offer just to tick a box. Offering a senior manager a junior administrative role, for example, could be seen as a “constructive dismissal” rather than a genuine attempt at redeployment.
- Unconscious Bias: Be vigilant against biases that can creep into the assessment process. Assumptions that an older worker may not be adaptable to new technology, or that a senior employee would not consider a role with fewer direct reports, can lead to overlooking viable redeployment opportunities.
- Poor Communication: A lack of transparency can breed mistrust and anxiety. Keep affected employees informed throughout the process, even if it’s to let them know that you are still searching for options. Clear, consistent, and empathetic communication is paramount.
By proactively managing these challenges, you can ensure that your approach to redeployment is robust, fair, and aligned with both legal requirements and strategic business objectives.
Map the Future of Your Workforce with Career Transition Support
Navigating these changes requires more than legal advice; it demands a forward thinking talent strategy. If you are mapping your workforce for the future, let’s have a conversation to discuss how proactive talent pipelining can safeguard your organisation.
Citations:
- Fair Work Act 2009 (Cth) s 389(2).
- The case facts are based on the hypothetical High Court decision Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 as described in the user’s prompt. A real, similar case that set precedent in this area is Teterin v Resource Pacific Pty Ltd [2014] FWC 5935.
About the Author
Greg Weiss is the Director and Founder of Career365. He has more than 30 years of success in HR consulting, Recruiting, Career Transitioning/Outplacement and Transitioning To Retirement advice.
Through our network within the NPAworldwide, Career365 acts as your single point of contact to a global ecosystem of recruitment specialists, allowing us to successfully deliver on any brief.
Career365 has partnered with many of Australia’s employers of choice, supporting departing employees with leading-edge practical careers, and transitioning to retirement advice, mitigating employer risk and making a real difference to participants in the Career365 programme.
