We have written about what a redundancy is, planning for redundancy and consultation so far in our redundancy series. Today we wanted to demonstrate some of the relevant principles by way of recent case law. One such case is that of Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 (5 April 2024).

In June 2022 proceedings were commenced by 22 former employees of Helensburgh Coal Pty Ltd (Helensburgh Mine), alleging their dismissal was not a case of “genuine redundancy”.

The matter has an extensive litigation history, having originally commenced in the Fair Work Commission (FWC), where Commissioner Riordan found in favour of the employees.  The matter was appealed to the Full Bench of the Fair Work Commission (Full Bench) who sent the matter back to Commissioner Riordan. Commissioner Riordan again found in favour of the employees and the matter was appealed again to the Full Bench, which granted leave to hear the appeal, but dismissed the application, which brings us to the most recent decision of the Federal Court of Australia (Federal Court).

In the Federal Court, Helensburgh Mine has sought that all previous decisions be quashed and an order that the FWC be prohibited from further dealing with the matter, which would have the practical effect of not permitting the mine employees from obtaining relief for unfair dismissal.

Facts – Summary

In 2018 a company called Menster was engaged to carry out an inspection of some of the mining systems at Helensburgh Mine. After that inspection, Menster was engaged to maintain that system. Nexus was another company who had been engaged in 2018 to provide various services to Helensburgh Mine.

At the time of the decision that the roles which were made redundancy were excess to requirements, Helensburgh Mine consulted with employees and their representatives who sought the reduction of reliance on contractors, including Menster and Nexus as the work could be performed by existing employees.

Section 389(1) of the FW Act provides that a dismissal is a genuine redundancy where the person job is no longer required due to operational requirements, and the employer has complied with any obligations to consult.

Section 389(2) of the act provides that a dismissal is not a case of genuine redundance where it would have been reasonable in all the circumstances for the employee/s to be redeployed. The case focused on what “in all the circumstances” could mean, particularly in relation to the performance of work by contractors, and whether the Commissioner or the Full Bench had errored in its application of that test.

Commissioner’s Decision

In brief, Commissioner Riordan considered:

  • the skills of the employees that were made redundant and their capacity to undertake the work of the contractors;
  • the specialist nature of any work performed by the contractors;
  • the “operational impracticality of insourcing”;
  • the ability of Helensburgh Mine to end their engagement of the external contractors; and
  • the training that would be required for insourcing.

In applying the above factors, the Commissioner concluded that redeployment rather than redundancy was reasonable in all of the circumstances under s 389(2) of the FW Act.

The Full Bench Decision

The Full Bench, in upholding the decision of the Commissioner, further reasoned that there does not need to be a vacant position in the enterprise for redeployment to be ‘reasonable in all the circumstances’. In this case, it was reasonable for Helensburgh Mine to redeploy their employees into roles being performed by external contractors, and the redundancies were therefore not “genuine redundancies”.

The Federal Court Decision

The Federal Court was required to examine whether the factors considered by the Commissioner and the Full Bench were sound and determined that there was no error made by either in their application of section 389(2). The Federal Court confirmed that the ability to free up work for its employees by reducing its reliance on external providers was a factor relevant to what was reasonable in all the circumstances, so too is the possibility that an employer can provide training to an employee instead of terminating their employment.


Primarily this case emphasises the importance of considering all other options before terminating an employee’s employment due to redundancy including:

  • redeploying the employee/s to a position filled by contractors;
  • Retraining the employee in a different position;
  • Whether a contract for work is soon to expire, or whether employees in a similar role are due to expire in the near future.

This case also touches on matters addressed in previous articles including, the importance of effectively planning a redundancy to ensure a thorough organisation review is undertaken and why it is important to genuinely listen to what employees (and their representatives) have to say during the consultation process.

We will address selection for redundancy in our next article.

Should you have any questions about planning for a restructure, or redundancies in general, please feel free to contact us.


Here is a link to the case: Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 (5 April 2024) (austlii.edu.au)

Written by Nicole Dunn and Kate Gibson


Disclaimer: This publication has been provided for general guidance only and does not constitute professional legal advice. You should obtain professional legal advice before acting on information contained in this article.