Last week, the High Court of Australia has handed down the decision of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29. The case is a timely reminder about the test within the Fair Work Act 2009 definition of a “genuine redundancy” pursuant to s 389.

A number of employees brought unfair dismissal claims against Helensburgh in the Fair Work Commission, claiming that their dismissals were not cases of “genuine redundancy” arguing they could have performed work which was done by contractors. Helensburgh objected to the applications on the basis that the terminations were cases of “genuine redundancy”.

The High Court found that the Full Federal Court last year correctly determined the matter when they found that when considering a redundancy situation, the employer had an obligation to assess whether the employees could perform the roles of contractors at its mine, prior to making redundancies.

The High Court has unanimously held that the Fair Work Commission is permitted to inquire whether an employer could have made changes to how it uses its workforce when determining whether a dismissal is a “genuine redundancy”.

The difficult facts for this employer included that while it was appropriate to decrease the size of their workforce due to COVID-19 impacts at that time, the employer had ongoing work that could be performed by the former employees, rather than contractors who were supplied by two companies on a “as-needs” basis.

The case is the 5th decision relating to this matter, and while the facts are not usual, it provides an interesting insight into the test for a “genuine redundancy”.

If you require further information about potential redundancies, please do not hesitate to contact a member of our Workplace Relations team.