As a Chief Human Resources Officer (CHRO), you’re often at the forefront of organisational change, balancing business needs with employee well-being and legal compliance. With the volatile economic landscape, marked by supply chain disruptions, technological shifts, and lingering effects of global events like the COVID-19 pandemic, redundancies have become an unfortunate reality for many Australian businesses. That is why navigating through redundancy law in Australia and fundamental understanding is a must.
However, a recent landmark ruling by the High Court of Australia in Helensburgh Coal Pty Ltd v Bartley [2024] HCA 24 has reshaped how employers must approach these decisions. This case underscores the importance of thorough, documented processes to avoid unfair dismissal claims, emphasising that genuine redundancy isn’t just about eliminating roles, it’s about exploring every reasonable avenue for redeployment.
In this article, I’ll distil the core lessons from the Helensburgh Coal case, redundancy law, drawing on its facts, legal principles, and broader implications under the Fair Work Act 2009 (Cth). I’ll frame this as practical advice tailored for you as a CHRO, outlining the reasonable steps your organisation should take when contemplating redundancies.
By adopting these measures, you can mitigate risks, foster trust among your workforce, and align HR strategies with sustainable business goals. We’ll avoid dense legal jargon, focusing instead on actionable insights that resonate with your role in shaping company culture and operations in adherence to redundancy law.
Source: miningweekly.com
Understanding the Helensburgh Coal Case: The Spark That Redefined Redeployment
The Helensburgh Coal dispute originated in 2020 at the Metropolitan Coal Mine in New South Wales, operated by Helensburgh Coal Pty Ltd, a subsidiary of Peabody Energy Australia. Facing plummeting demand for coking coal amid the pandemic, the company scaled back from a seven-day, five-crew operation to a six-day, four-crew model. This led to the redundancy of around 90 employees, with no open vacancies available at the time. However, Helensburgh continued to rely on a pool of contractors for intermittent work, albeit in reduced numbers.
Twenty-two dismissed employees challenged their terminations before the Fair Work Commission (FWC), arguing that their dismissals weren’t “genuine redundancies” under Section 389 of the Fair Work Act. They contended that it would have been reasonable for the company to redeploy them into roles currently performed by contractors, potentially by insourcing that work or adjusting contractor arrangements.
The FWC initially sided with the employees, finding that Helensburgh hadn’t adequately explored these options. This decision was upheld on appeal by the Full Federal Court, prompting Helensburgh to take the matter to the High Court.
In a unanimous judgment delivered in August 2025, the High Court dismissed the appeal, clarifying the scope of employer obligations while adhering to redundancy law. The Court emphasised that the FWC’s role isn’t to second-guess business decisions but to objectively assess whether redeployment was feasible in “all the circumstances.” This ruling builds on the foundational principles of the Fair Work Act, which aims to protect employees from harsh, unjust, or unreasonable dismissals while allowing employers flexibility in managing their operations in line with redundancy law.
What is Redundancy in Employment Law?
Redundancy law is the body of employment legislation that outlines the legally required process an employer must follow when terminating an employee because their job is no longer needed due to operational changes, such as business restructuring, technological advancements, or a downturn in trade. These laws are designed to ensure the reason for dismissal is genuine and not a disguise for firing an individual based on performance or discriminatory reasons.
The Fair Work Act 2009 defines a “genuine redundancy” and requires employers to consult with employees as per any applicable modern award or enterprise agreement. A key aspect of Australian redundancy law is the obligation to consider reasonable redeployment opportunities for the employee within the employer’s enterprise or an associated entity.
Key Principles from the High Court: What Makes a Redundancy “Genuine”?
At its heart, the Fair Work Act defines a “genuine redundancy” related to redundancy law in Section 389 as one where the employee’s job is no longer required due to changes in operational requirements, and the employer has complied with consultation obligations in relevant awards or agreements. Critically, under Subsection 389(2), it’s not genuine if it would have been reasonable to redeploy the employee within the employer’s enterprise or an associated entity in line with redundancy law.
The High Court’s distillation in Helensburgh Coal provides clarity on this often murky area:
1. Redundancy Law Isn’t Limited to Vacancies
The Court rejected a narrow view that redeployment only applies to existing open positions. In redundancy law, redeployment can involve hypothetical scenarios where the employer reorganises its workforce to create opportunities. For instance, if contractors are performing tasks that redundant employees could handle with minimal adjustment, the redundancy law can question whether shifting that work in-house would be reasonable.
2. Objective Assessment of “All Circumstances”
Reasonableness is evaluated objectively, not just from the employer’s or employee’s perspective. Redundancy law factors include the nature of the business (its “enterprise”), employee skills, training needs, contractual commitments (e.g., long-term contractor agreements), company policies, and future operational plans. The Court noted that while employers aren’t required to fundamentally alter their business model—such as expanding into new areas—they must consider practical tweaks, like phasing out certain contractor roles.
3. Workforce Reorganisation as a Viable Option
A pivotal point was the affirmation that the FWC can probe whether changes to “how the employer uses its workforce” could facilitate redeployment in line with redundancy law. In Helensburgh’s case, this meant examining if reducing contractor reliance could free up work for employees, even if it involved some disruption. However, such changes must align with the business’s existing setup and not impose undue burdens.
4. No Automatic Immunity Without Thorough Inquiry
In redundancy law, employers can’t claim genuine redundancy simply by asserting they’ve checked for vacancies. The High Court stressed that the FWC’s inquiry is broad and hypothetical, focusing on what “would have been reasonable” at the time of dismissal. This shifts the onus onto employers to demonstrate they’ve explored all angles.
These redundancy law principles mark a subtle evolution from prior interpretations, which sometimes leaned toward a more employer-friendly lens. Now, the emphasis is on proactive exploration, particularly in hybrid workforces blending employees and contractors, a common setup in industries like mining, manufacturing, and services.
Advising CHROs: Reasonable Steps to Safeguard Redundancy Processes
As a CHRO, your leadership is crucial in embedding redundancy law principles into your organisation’s practices. Redundancies, when mishandled, can erode morale, invite litigation, and damage your employer brand.
Drawing from Helensburgh Coal and Fair Work guidelines, here are the essential, reasonable steps to follow concerning redundancy law. Think of this as a roadmap to not only comply with the law but also to treat employees with dignity, potentially turning a difficult process into one that reinforces your company’s values in adherence to redundancy law.
1. Conduct a Comprehensive Operational Review Early
Before any redundancy decisions, map out your workforce composition. In doing this, you need to have a better understanding of redundancy law in Australia. Identify all roles, including those performed by contractors or labor hire workers. Ask: Is there ongoing work that redundant employees could perform? Could we insource contractor tasks without overhauling our core operations? Document this analysis meticulously.
2. Prioritise Meaningful Consultation
The Fair Work Act mandates consultation for major changes, but goes beyond the minimum. Notify affected employees promptly, share detailed information on the reasons for change. Such as market data on demand drops), and discuss impacts openly. In redundancy law, for large-scale redundancies (15+ employees), notify Centrelink in advance to avoid penalties. This step isn’t just legal; it’s ethical, helping maintain trust and potentially uncovering redeployment ideas.
3. Assess Redeployment Broadly and Objectively
This is where Helensburgh Coal bites hardest. Evaluate redeployment across your entire enterprise and associated entities. Make sure you adhere to redundancy law. Consider:
- Skills and Suitability: Match employee capabilities to available positions or create a new position with set of responsibilities.
- Contractor Arrangements: Review of displacing contractors is feasible. Check contract end dates, notice periods, and penalties. If contractors are on “as-needed” terms, this could be a prime area for adjustment.
- Associated Entities: Look beyond your immediate company; if your organisation has subsidiaries, explore opportunities there.
- Hypothetical Scenarios: Model “what if” options, such as reducing overtime or reallocating tasks, but weigh them against business realities like costs or safety protocols.
- Document Everything: Document every consideration, even rejections with a clear rationale. Tools like decision matrices can help visualise this process.
4. Seek Expert Input and Legal Review
Engage with lawyers with expertise in redundancy law. Consult with them on Fair Work Act standards. As CHRO, you might also consult with HR industry people on redundancy law best practices. If your workforce is unionised, involve representatives to preempt disputes.
5. Communicate Transparently and Support Transitions
Once decisions are made, provide clear reasons in writing, including why redeployment wasn’t viable. Offer outplacement services, counselling, or severance beyond entitlements to soften the blow. This not only complies with notice and redundancy law but also protects your reputation. A core principle embedded within redundancy law is procedural fairness, which doesn’t end once a selection pool is finalised. The manner in which the termination is communicated and handled is just as critical as the reasoning behind the decision itself, often becoming a key focus in legal challenges.
6. Monitor and Learn Post-Process
After redundancies, review what worked and what didn’t. Update HR policies to incorporate Helensburgh Coal lessons, such as regular workforce audits. Make sure it adheres to redundancy law in Australia. This proactive stance can prevent future claims and position your organisation as a responsible employer and avoid problems when it comes to redundancy law.
Implementing these steps requires time, potentially weeks for thorough assessments. But the payoff is substantial. In Helensburgh Coal, a more expansive redeployment review might have avoided years of litigation and problems when it comes to redundancy law.
Remember, for small businesses (under 15 employees), some unfair dismissal protections don’t apply, but best practices still matter for morale and compliance.
Building Resilience Through Thoughtful HR Leadership
The Helensburgh Coal case highlights that redundancies require empathy, rigor, and foresight. As a CHRO, you can guide your team toward legally sound, strategic decisions by embedding broad redeployment assessments, robust consultations, and detailed documentation into your process.
The legal framework is not static; courts are increasingly scrutinizing the substance of an employer’s efforts, moving beyond mere procedural box-ticking. This evolution in redundancy law means that what was considered a defensible process a few years ago may no longer suffice, placing a greater burden on employers to demonstrate genuine and exhaustive efforts to preserve employment.
To ensure your approach is both compassionate and compliant, partner with Career365 for expert guidance on managing workforce transitions.
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.
