the brief.
necessary considerations before making employees redundant.
tyson brennan.
mervin laureano. 01 july 2025.
necessary considerations before making employees redundant.
In the recent HCA decision of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29, it has been confirmed that the Fair Work Commission is permitted to examine whether an employer could have made changes to the way in which an employer uses its workforce, when determining whether the redundancy was genuine in accordance of s 389 of the Fair Work Act 2009 (Cth). The decision, which dismissed an appeal by the employer, affirms the employer’s responsibility to carefully consider the redeployment options for employees and ensure that it assesses its operations to create or vacate a position for an employee who would otherwise have been made redundant.
background
The dispute between Helensburgh Coal and 22 former employees lasted for a total of five years, commencing after the employees initiated unfair dismissal claims following their termination from their roles at the Metropolitan Coal Mine.
In 2018 and 2019, Helensburgh Coal engaged Nexus Mining and Menster to provide various service related to the Mine. Nexus and Menster engaged contractors to provide those services. In May 2020, during the COVID-19 pandemic, Helensburgh Coal notified the employees that it had elected to restructure its operations at the Mine, by reducing the number of crews and reducing the number of days worked per week, thus requiring fewer workers. During consultation for the redundancies arising from the restructure, Helensburgh Coal was asked by workplace representatives to mitigate the impact of the restructure on employees by reducing its reliance on the Contractors.
Despite Helensburgh Coal’s efforts to direct some of the Contractors’ work to its employees, the restructure forced the redundancies of 47 employees at the Mine. Helensburgh Coal elected to continue under its existing services agreement with the Contractors, despite the redundancies they made.
litigation history
22 employees who were made redundant by Helensburgh Coal’s restructure then applied to the Fair Work Commission for remedies for unfair dismissal under s 394 of the Act. In their applications to the Commission, the employees asserted that their dismissal did not resemble a case of genuine redundancy. The employees contended that Helensburgh Coal could have redeployed them to the other roles that the contractors were still performing.
The Commission, at first instance, held that the termination was not genuine, as it would have been reasonable in all the circumstances to redeploy the Employees into roles performed by the Contractors. Helensburgh Coal appealed that decision to a Full Bench of the Commission twice, before applying to the Full Federal Court and after an unsuccessful appeal, to the High Court.
- Equip school staff and teachers with the appropriate training and information. This should include training on recognising the indicators of child abuse or risk of harm and understanding when and how to report concerns, suspicions or allegations. Most importantly, schools should not merely wait for students to approach staff, or wait for staff to identify signs of concern.
- Adopt an approach that prioritises prevention and empower members of the school community to call out unacceptable behaviours.
- Appoint Child Safety Officers and ensure they are provided with appropriate and regular training and information to perform their role effectively. Ensure their training contains information about how to support students with disabilities.
- Ensure that there is an appropriate response and investigation in line with the legal obligations and school commitment to child safety, and that any interviews with students take account of the student’s disability and are trauma informed.
reasonable adjustments for students with disability
Under both state and Commonwealth laws, schools must make reasonable adjustments to accommodate students with their disability. In this context, an adjustment refers to a measure or action taken to assist students in participating in education and training on the same basis as their peers without a disability.
At all times, schools in their conduct, should demonstrate the view that all students have the potential to learn and the right to participate in a learning environment that is committed to supporting their educational development and genuine participation, including students with complex communication needs.
When formulating adjustments for students, the school should consult with the relevant parent or carer(s) and the student, typically through the student support group process.
Despite this, the High Court has clarified that employers are not expected to make changes that would result in a change to an essential or important facet of their enterprise. However, there appears to be an increasing expectation on employers to make changes that may cause some inconvenience, discomfort or disruption to the business if it means a person can be redeployed, rather than their employment terminated.
Contact us today to discuss your needs.
Tyson Brennan, Principal Solicitor.
mervin laureano, Law clerk.
