Redundancy and redeployment processes may be familiar territory for HR professionals and business leaders—but they may not be as straightforward as they first appear.

The High Court’s decision in Helensburgh Coal Pty Ltd v Bartley clarified what the Fair Work Commission may consider when determining whether a redundancy is genuine, particularly when assessing whether reasonable redeployment opportunities were available.

The decision reinforces an important message for employers:

 Redeployment may require more than simply checking whether there are vacant positions.

 What Happened?

A number of employees at a coal mine operated by Helensburgh Coal were made redundant following a reduction in the business’s operational requirements.

Several of the affected employees subsequently filed unfair dismissal claims. They argued that their redundancies were not genuine because they could potentially have performed work that was, at the time, being undertaken by contractors.

The issue was therefore not limited to whether there were vacant employee positions available. It also involved whether changes could reasonably have been made to the employer’s broader workforce arrangements.

What Did the High Court Decide?

The High Court determined that the Fair Work Commission may consider whether an employer could reasonably have changed how it used its workforce to create or make a position available for an employee who would otherwise be made redundant.

In practical terms, redeployment does not necessarily require an existing vacancy or an advertised role.

Depending on the circumstances, employers may need to consider:

• work currently being performed by contractors;
• whether contractor arrangements could reasonably be changed;
• whether duties could be reorganised or redistributed;
• whether workforce structures could be adjusted; and
• whether other reasonable operational changes could create a redeployment opportunity.

This does not mean employers must automatically remove contractors or create entirely new positions whenever a redundancy is proposed.

It does mean that employers should undertake—and clearly document—a broader and more considered assessment of reasonable redeployment options.

 What Does This Mean for Employers?

The decision has potentially significant implications for organisations undertaking restructures and redundancies, particularly those that engage a combination of employees, labour-hire workers and independent contractors.

When assessing whether a redundancy is genuine, the Fair Work Commission may scrutinise the organisation’s broader operational and staffing arrangements.

Simply stating that all current vacancies have been considered may no longer be enough.

Employers should be prepared to demonstrate that they have genuinely considered:

• available positions across the business and associated entities;
• suitable work being performed by contractors or labour-hire workers;
• employees’ skills, experience and ability to perform alternative duties;
• reasonable changes to duties, reporting structures or work allocation; and
• the practical and operational consequences of any proposed redeployment.

Employees and unions may also challenge whether the employer’s reliance on contractors was properly considered before directly employed workers were made redundant.

 Strong Documentation Is Essential

A well-managed redundancy process should clearly record:

• the genuine operational reasons for the restructure;
• the positions and duties affected;
• the employer’s current workforce arrangements;
• the use of contractors and labour-hire personnel;
• the redeployment options considered;
• why particular options were or were not reasonable; and
• the consultation undertaken with affected employees.

This analysis should occur before final decisions are made—not after an unfair dismissal claim has been lodged.

How Capture Culture Can Help

Restructures and redundancies can create significant legal, operational and people risks if they are not carefully planned and documented.

At Capture Culture, we support businesses to undertake fair, practical and defensible restructuring processes.

We can assist with:

• workforce and resource planning;
• restructure and redundancy strategies;
• contractor and labour-hire workforce analysis;
• consultation processes;
• redeployment assessments;
• redundancy documentation; and
• communication with affected employees.

If your business is considering a restructure or redundancy process, obtaining advice early can help you identify reasonable alternatives, strengthen your decision-making and reduce the risk of future disputes.

A clearly documented workforce analysis is no longer simply good HR practice it may be critical to establishing that a redundancy is genuinely lawful.

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