Power, Workforce Choices and Fairness: Redeployment After Redundancy
Home › Case Studies › Employment Law › Industrial Relations › Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 (6 August 2025)
Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)
Many clients worry that once a restructure begins, decisions about staffing and redeployment move beyond what feels visible or controllable. That feeling is common, and this case shows why it matters for the strategic choices you may face when operational changes intersect with legal review.
Case Summary
In Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 (6 August 2025), the High Court considered how far the Fair Work Commission may go when deciding whether a dismissal is a genuine redundancy under s 389(2) of the Fair Work Act 2009 (Cth).
The employees argued they should have been redeployed into roles being performed by contractors. Helensburgh Coal argued the Commission could not consider redeployment that involved reconfiguring how the enterprise used contractors.
The Court rejected that limitation. It held that the Commission may ask whether
“it would have been reasonable in all the circumstances for the employees to be redeployed” and that this includes assessing “what, at the time of the dismissal, could have been done to redeploy the employee within the employer’s enterprise”.
Crucially, “redeployed” does not require an existing vacancy; the inquiry may include reasonable changes to workforce allocation, so long as the Commission does not change the essential nature of the employer’s enterprise.
The appeal was dismissed.
Risk Classification
In-litigation risk - cost-incentive failure during statutory review of workforce decisions.
Core Legal Risk Identification
The Court confirmed a wide conception of the redeployment inquiry. The Fair Work Commission may consider whether reallocating contractor work would, in the circumstances, have made redeployment reasonable. As the Court explained, s 389(2) directs attention to “a hypothetical situation changed from what it was” and asks whether redeployment “would have been reasonable in all the circumstances”.
For clients, this creates a practical risk: the cost, timing and trajectory of a dispute can shift because statutory tests allow multiple reasonable pathways, especially where workforce decisions and contractual arrangements intersect. When the Commission’s inquiry involves hypotheticals about staffing configuration, downstream cost exposure can become unpredictable.
Because this is a cost-incentive risk, not a conflict or independence issue, the appropriate safeguard under your rules is cost-alignment (one-path funding).
Default Structural Context
Clients often describe uncertainty about options, timing windows, cost exposure and how operational decisions may be tested by a regulator or tribunal. Structural clarity, mapping pathways, identifying decision points and presenting budget scenarios, helps clients navigate this uncertainty without implying that the underlying workplace events could have been avoided.
Why It Still Matters
The judgment has continuing relevance because workforce models now commonly blend employees, contractors and specialist providers. When restructures occur, redeployment analysis may involve assessing not only current roles but also near-term availability, contract flexibilities and workload patterns.
This means the outcome of a redundancy dispute sometimes turns on how tribunals view reasonable hypothetical changes to the enterprise. For clients across mining, manufacturing, logistics and professional services, the lesson is that pathway planning must anticipate how decision-makers interpret flexibility within the existing enterprise.
A modern dispute can therefore pivot on whether workforce adjustments were reasonably open, even if they were not made.
How to Avoid the Same Trap
For this matter, the correct safeguard is cost-alignment (one-path funding).
Two lawyers often cost less than one - because you fund one path, not both.
A safer structure is one where the courtroom lawyer focuses on the litigation path, while a separate client-side lawyer manages settlement, timing windows and budget control under escrow. Typical models charge for both litigation preparation and settlement work at the same time; the Clean Law structure separates those roles so clients fund only the path they ultimately take.
This matters in redundancy disputes because the legal test involves counterfactual reasoning. When a tribunal assesses what could have been done, litigation intensity and cost can escalate unpredictably. Cost-alignment keeps that escalation visible and prevents clients from funding parallel pathways unnecessarily.
The Practical Lesson
Redeployment decisions under the Fair Work Act often involve broad evaluative assessments. When tribunals may consider hypothetical workforce configurations, strategic planning and funding clarity must be established earlier than most clients expect. Aligning the cost structure to a single pathway preserves visibility as those assessments unfold.
You can see how one-path funding, escrow safeguards and role separation operate in practice on our Two-Lawyer Collaboration & Escrow Oversight page.
To understand how independence is kept visible, no referral fees, ACNC governance and annual trust-account audits, visit our Independence page or book a confidential discussion.
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
