Helensburgh Coal Pty Ltd v Bartley

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.