Helensburgh Coal Pty Ltd v Bartley

Case [2025] HCA 29

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD AND BEECH‑JONES JJ

HELENSBURGH COAL PTY LTD  APPELLANT

AND

NEIL BARTLEY AND OTHERS NAMED

IN THE SCHEDULE  RESPONDENTS

Helensburgh Coal Pty Ltd v Bartley

[2025] HCA 29

Date of Hearing: 6 March 2025

Date of Judgment: 6 August 2025

S119/2024

ORDER

Appeal dismissed.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with A M Pomerenke KC and P M Zielinski for the appellant (instructed by MinterEllison)

J T Gleeson SC with P A Boncardo for the first to twenty-second respondents (instructed by Mining and Energy Union)

Submitting appearance for the twenty-third respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Helensburgh Coal Pty Ltd v Bartley

Industrial law (Cth) – Unfair dismissal – Genuine redundancy – Where employer dismissed employees because of changes in operational requirements of employer's enterprise – Where employer continued to deploy contractors to perform work in employer's enterprise – Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise – Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee.

Appeals – Standard of appellate review – Where Full Bench of Fair Work Commission applied House v The King standard of appellate review to review of decision that dismissals were not cases of genuine redundancy under s 389 of Fair Work Act – Whether House v The King appropriate standard of appellate review – Whether application of wrong standard of appellate review would constitute jurisdictional error.

Words and phrases – "affording latitude", "all the circumstances", "appeal by way of rehearing", "appellate restraint", "business, activity, project or undertaking", "case of genuine redundancy", "contractors", "correctness standard", "counter-factual", "discretionary decision", "employer's enterprise", "employment", "enterprise", "error within jurisdiction", "Fair Work Commission", "genuine redundancy", "House v The King", "hypothetical", "insourcing", "job", "judicial review", "jurisdictional error", "nature of the employer's enterprise", "operational requirements", "position", "reasonable in all the circumstances", "redeploy", "reinstatement", "restructure", "standard of appellate review", "termination", "unfair dismissal", "work", "would have been reasonable".

Fair Work Act 2009 (Cth), ss 385, 389.

  1. GAGELER CJ, GORDON AND BEECH-JONES JJ.   The first to twenty-second respondents[1] ("the Employees") worked at the Metropolitan Coal Mine ("the Mine") operated by the appellant, Helensburgh Coal Pty Ltd ("Helensburgh").[2] Two companies, Nexus Mining Pty Ltd ("Nexus") and Mentser Pty Ltd ("Mentser"), were engaged, in 2018 and 2019 respectively, to provide various services at the Mine. Nexus and Mentser engaged contractors to provide those services (collectively, "the Contractors").

    [1]The twenty-third respondent is the Fair Work Commission.

    [2]Although the Mine is also operated by other companies, and Helensburgh is not charged exclusively with managing the Mine, there is no issue in this matter about corporate identity.

  2. The…

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AGLC
Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29
Case
[2025] HCA 29
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Helensburgh Coal Pty Ltd against a decision of the Full Bench of the Fair Work Commission. The dispute concerned whether the dismissal of certain employees constituted a "genuine redundancy" under section 389 of the *Fair Work Act 2009* (Cth). Helensburgh Coal argued that the employees were dismissed due to changes in its operational requirements, specifically a reduction in production caused by the COVID-19 pandemic. The employees contended that their dismissals were not genuine redundancies because Helensburgh Coal continued to engage contractors to perform work that the employees could have undertaken.

The primary legal issue before the High Court was whether, in assessing whether it would have been reasonable for an employee to be redeployed within the employer's enterprise under section 389(2) of the *Fair Work Act*, the Fair Work Commission was permitted to inquire into whether the employer could have made changes to its enterprise, such as insourcing work performed by contractors, to create or make available a position for the redundant employee. A secondary issue concerned the appropriate standard of appellate review to be applied by the Full Bench of the Fair Work Commission when reviewing a decision on genuine redundancy.

The High Court held that section 389(2) of the *Fair Work Act* permits the Fair Work Commission to consider a wide range of circumstances when determining the reasonableness of redeployment. This includes the employer's policies and practices regarding the use of labour, such as the engagement of contractors. However, the Commission's inquiry is limited to the state of the employer's enterprise at the time of dismissal and cannot extend to requiring the employer to fundamentally change the nature of its enterprise or to make significant changes to its business choices, including its labour practices, to create a redeployment opportunity. The Court found that the Full Bench had erred in its approach to the standard of appellate review, but this error did not lead to a jurisdictional error.

The appeal was dismissed. The High Court affirmed that while the Fair Work Commission can consider whether it would have been reasonable to redeploy employees into work performed by contractors, this assessment must be confined to the existing structure and choices of the employer's enterprise at the time of dismissal, without mandating a change to that enterprise.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Pursuant to s 604 of the FW Act, a person may appeal a decision of a Fair Work Commissioner to the Full Bench of the FW Commission. This requires the permission of the FW Commission. Pursuant to s 400(1), permission must not be granted unless the FW Commission considers that it is in the public interest to do so. Permission was here granted by the Full Bench. For the reasons set out below, it is otherwise unnecessary to consider the function and purpose of the Full Bench of the FW Commission in hearing appeals.Facts The facts are not in dispute. The appellant operates the Metropolitan Coal Mine in the Illawarra region of New South Wales ("the Mine") which produces coking coal. For that purpose, it had employees, including the first to twenty-second respondents. It also used contractors. In 2018 it engaged Nexus Mining Pty Ltd ("Nexus") to provide services at the Mine on an as needs basis. The relevant contract with Nexus, which was for a period of two years (with an ability to extend this for another 12 months), remained in force when the Employees were dismissed on 24 June 2020. Following a fire at the Mine, in 2019 the appellant engaged Mentser Pty Ltd ("Mentser") to provide servicing, inspection, auditing and rectification of the Mine's underground conveyor systems. This contract was for a period of up to five years. It was a "Standing Offer Agreement" whereby Mentser would only supply services when required. The contract with Mentser also remained in force when the Employees were dismissed. In 2020, the COVID-19 pandemic caused the price of coking coal to fall. The appellant decided to reduce its production of coal and, as a result, it needed fewer employees. There followed a process of consultation with the appellant's employees in accordance with the requirements of s 389(1)(b). The appellant decided that it would agree to insource some of the work carried out by contractors. It reduced its direct workforce of employees by 90 (47 of whom were subject to a forced redundancy; these included the first to twenty-second respondents); it also reduced the number of contractor staff by 40 per cent. The dismissal of the Employees was the result of a decision made by the appellant to reorganise the performance of work at the Mine. It was not in dispute that, for the purposes of s 389(1), due to COVID-19, the appellant no longer required the jobs of each Employee to be performed because of changes in the operational requirements of the appellant's enterprise. It was also not in dispute that at the time of the dismissal of the Employees, there was no vacant role within the appellant's enterprise to which any of them might be redeployed. Nor was it foreseeable that such a vacancy might arise. The only way to redeploy the Employees would have been to demobilise the workers engaged by either Nexus or Mentser. At the time of the dismissal of the Employees, eight Mentser employees and around 90 Nexus employees worked at the Mine. If the eight Mentser employees had been removed and replaced by eight of the Employees, this would have had a significant adverse impact on Mentser's business and would have resulted in the almost inevitable dismissal of the eight Mentser workers. Similarly, if the Nexus employees had been replaced by the Employees, it was accepted that the vast majority of the replaced Nexus employees would also have been dismissed. This would have led to the loss of core expertise which would have been difficult for Nexus to replace.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GAGELER CJ, GORDON AND BEECH-JONES JJ EDELMAN J STEWARD J
Two procedural provisions in Div 5 are important. Section 394 confers upon a "person who has been dismissed" the right to apply to the FWC for an order under Div 4 of Pt 3‑2. Section 396 provides that the FWC, before considering the merits of an application for unfair dismissal, must decide, among other things, "whether the dismissal was a case of genuine redundancy". It is because s 396 isolates this inquiry as a separate, and preliminary, question that this appeal, and the decisions below, are only concerned with the question of whether the terminations were genuine redundancies. This appeal will not resolve the ultimate question of whether the Employees were unfairly dismissed.FWC decisionsFirst Commissioner Riordan decision On or about 10 July 2020, the Employees applied to the FWC for remedies for unfair dismissal, pursuant to s 394 of the FW Act. Helensburgh objected to the applications, submitting that the FWC did not have jurisdiction under s 396 of the FW Act to consider the merits of the applications because each termination was a genuine redundancy within the meaning of s 389 of the FW Act. The Employees argued that the terminations were not genuine redundancies because Helensburgh should have taken steps to redeploy the Employees to perform work that was performed by the Contractors. Helensburgh argued that the work that was performed by the Contractors was specialist work. Helensburgh submitted that s 389(2) of the FW Act did not oblige it to structure its enterprise to create roles for redundant employees and that it would not have been reasonable to remove all the Contractors in order to redeploy the Employees. Commissioner Riordan was not satisfied that the work performed by the Contractors was specialist work. Commissioner Riordan held that, therefore, it would have been reasonable in all the circumstances to redeploy the Employees into the roles performed by the Contractors. Commissioner Riordan held that the Employees' terminations did not satisfy s 389(2)(a) of the FW Act and dismissed Helensburgh's jurisdictional objection. First appeal decision Helensburgh appealed the first Commissioner Riordan decision to the Full Bench of the FWC. The Full Bench rejected Helensburgh's contention that the work of the Contractors was not part of Helensburgh's "enterprise" and was therefore excluded from consideration under s 389(2)(a). The Full Bench reasoned that "there are no binding principles that attach to a consideration of whether redeployment within the enterprise is 'reasonable in all of the circumstances'" and did not consider it reasonable "to establish a rule, as suggested by [Helensburgh], as to what contracted work it might be feasible to consider and what should be automatically discounted in considering the reasonableness or otherwise of redeployment". The Full Bench agreed with Helensburgh that, in making his assessment, Commissioner Riordan was required to consider the feasibility, from the employer's perspective, of insourcing the Contractors' work in addition to considering the nature of that work, including whether or not it was specialised. The Full Bench held that Commissioner Riordan was required to consider whether it was reasonable, in all the circumstances, to redeploy the Employees, and that the Commissioner had failed to do so because he had considered only whether the Employees could perform the Contractors' work. The Full Bench allowed the appeal and remitted the matter to Commissioner Riordan. Second Commissioner Riordan decision

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON AND BEECH-JONES JJ, EDELMAN J, STEWARD J

On appeal to this Court from the decision of the Full Court of the Federal Court, Helensburgh Coal relied again upon the two grounds described above. Neither ground should be accepted. The appeal to this Court must be dismissed.The relevant considerations in applying s 389(2) of the Fair Work Act Section 389(2) of the Fair Work Act does not contain any express restrictions upon the considerations relevant to whether it would have been reasonable in all the circumstances for the person who was dismissed to be redeployed within the employer's enterprise. Instead, the reference to "all the circumstances" permits the Fair Work Commission to have regard to a wide range of considerations. Nevertheless, there are limits to the considerations to which the Commission may have regard. One limit to the matters to which the Fair Work Commission may have regard under s 389(2) derives from the reference to "the employer's enterprise". "[E]nterprise" is defined as "a business, activity, project or undertaking".[38] As Steward J explains, when the Fair Work Commission assesses whether the employee could have been redeployed within the employer's enterprise the Commission may have regard only to the state of the employer's enterprise at the time of the employee's dismissal.[39][38]Fair Work Act 2009 (Cth), s 12.[39]Reasons of Steward J at [131]-[132]. A point can be reached at which the circumstances in which an employee asserts that redeployment should occur would involve changing the nature of the enterprise, where the enterprise (business, activity, project or undertaking) is characterised at a level of generality that is neither too general (eg, "coal mining") nor too particular (eg, "coal mining in accordance with every one of the precise processes and procedures presently adopted"). At the right level of generality which focuses upon the essential or important facets of the enterprise, I agree with Steward J[40] that the "employer's enterprise" in s 389(2) includes the "policies, processes, procedures, strategies and business choices of the enterprise, including any plans it had for the future", at least where those matters are important aspects of the employer's enterprise. [40]Reasons of Steward J at [131]. In particular, as Steward J explains, the employer's enterprise includes the employer's "policies and practices in relation to the use of labour, including as to whether to use permanent employees, independent contractors, casual labour, or contractors".[41] The Commission has no authority to consider the reasonableness of a redeployment that would involve any significant change to any of these matters such that there would be a change in the enterprise, properly characterised, at the date of dismissal. [41]Reasons of Steward J at [131]. Helensburgh Coal effectively submitted that a consideration of potential redeployment to perform jobs that are already performed by others involves an assessment that is other than in accordance with the conditions of the existing enterprise at the date of dismissal. As an absolute proposition, that submission could not be accepted. Indeed, Helensburgh Coal properly accepted as much. A simple example might be an employee who was dismissed from an enterprise in which another employee, performing an identical job, was to retire the next day. In those circumstances, it would be open to the Commission to consider whether, on the state of the employer's enterprise, the dismissed employee could have been redeployed to perform the job that would have been vacant the next day. All other things being equal, the natural conclusion in such circumstances would be that redeployment would have been reasonable. Hence, it could sometimes be reasonable, in all the circumstances of the employer's enterprise at the time of dismissal, for an employee to be redeployed within the employer's enterprise even if there were no vacant job at that time.