A permanent full-time worker who lost his job when Jetwave Marine Services was forced out of Port Hedland argued that the company should have moved casual deckhands aside to make room for him. Deputy President O’Keeffe found it would not have been reasonable to do so. He upheld the employer’s jurisdictional objection (an argument that the Commission cannot hear the claim at all) and dismissed the unfair dismissal application.
The worker, represented by the CFMEU, relied on the High Court’s decision in Helensburg Coal Pty Ltd v Bartley [2025] HCA 29. He argued that the principle in that case, that redeployment is not confined to jobs that are already vacant, should extend to replacing casual employees with permanent employees facing redundancy.
A licence cancelled, a whole site redundant
On 7 May 2026, the employer learned that its Standard Service Provider Licence for Line Boat Services at Port Hedland would be cancelled, and the Pilbara Ports Authority ordered it to stop operating at the port. That put the jobs of all its Port Hedland staff at risk.
A number of employees took redundancy payments. The worker sought redeployment to a permanent full-time position and was dismissed when the employer said it could find none. He had more than six months’ service, which gave him unfair dismissal protection, but less than one year’s continuous service, so he was not entitled to a redundancy payment. He applied to the Commission under s.394 of the Fair Work Act 2009 on 8 June 2026.
The employer argued the dismissal was a case of genuine redundancy (a dismissal the Act excludes from unfair dismissal claims). The worker accepted that his role no longer existed. He also accepted that the employer had consulted as required by clause 41 of the Jetwave Marine and Maritime Union North-West Inshore Agreement 2022, with the caveat that redeployment should have been explored more fully. The case turned on the third limb of the test.
A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer.
Vacant roles, full-time casuals and pooled hours
The worker identified three kinds of job. The first was permanent vacancies: one deckhand role on the Jetwave Asari in Dampier, and roles at the employer’s Quayside operation in Exmouth. The second was casual roles worked at full-time hours, notably four deckhand positions on the multi-cat vessel Jetwave Vision during a four-month dredging contract, and roles on the Jetwave Lightning, a project vessel guaranteed 200 paid days a year. The third was combining casual hours into a full-time job.
The employer’s HR manager gave evidence that it had 22 casual deckhands, based at Fremantle and Dampier or working on vessels in north-west Western Australia. Twelve casuals at Fremantle averaged 11 hours a week, a pool of 132 hours. Four casuals in a pool at Dampier averaged three days a week.
that the question was not whether a full-time position currently existed but whether he could have been redeployed into the employer’s operations. He said he was willing to work anywhere in Western Australia, including fly-in fly-out, that he could have replaced a casual on the Jetwave Vision, and that the 132 Fremantle hours could have been crafted into a full-time job. He argued that the idea of casuals being let go before permanent staff was gaining ground in the industry. CFMEU Maritime Division organiser Joel O’Brien gave evidence that the employer had used, and still uses, casual deckhands at a number of Western Australian locations.
that its entire Port Hedland workforce faced redundancy at once, that the single permanent deckhand vacancy was offered in order of experience and expertise, and that its casuals worked on an “as and when required” basis. The Jetwave Vision casuals had already been inducted and mobilised for a short contract, and had been promised work for its duration. The Exmouth roles required the employee to live in Exmouth.
that it would not have been reasonable to redeploy the worker to any of the options examined, whether vacant permanent jobs, jobs filled by casuals or full-time jobs assembled from casual hours.
Fifth in line for the one vacancy
Under cross-examination the HR manager conceded that her first assessment had recommended the worker for the Jetwave Asari role. She said a revised ranking followed, based on further information about skills and tenure. The first three employees on the revised list declined the role, the fourth accepted it, and the worker was fifth. The Deputy President accepted that a better-qualified employee had taken the role before it reached the worker, and found it would not have been reasonable to give it to him instead.
On Exmouth, the Deputy President accepted that the roles were raised at a consultation meeting on 19 May 2026, relying in part on the HR manager’s prepared script. Because the roles were different in nature and required residence in Exmouth, any employee wanting to be considered “should have expressed such interest”.
Why displacing casuals was not reasonable here
On the Jetwave Vision, the Deputy President noted the worker had last worked on that vessel some fourteen years earlier, and that inducting him would likely have bought only a short stay before redundancy arose again. He was not persuaded that an employee being “reprieved from redundancy only to face it again in three months is practical or reasonable for either party”. The vessel manager’s evidence was that, by the time of his statement on 31 August 2026, the Jetwave Vision work was complete and the vessel was idle.
On the Jetwave Lightning, the Deputy President was not persuaded it was reasonable to insert a permanent employee where the employer “may well face a situation where the employee is paid to do nothing because there is no work to do”.
On pooled hours, he did not accept that the proposal was reasonable. Deputy President O’Keeffe said: “The total of hours is far less relevant than the spread.”
He said a full-time job would require enough hours and work spread across four or five days, and there was nothing to show the Fremantle or Dampier work met that test.
During the hearing, held by Teams videolink on 11 September 2026, the worker could not point to any decision extending the Helensburg principle to casual employees. The Deputy President raised concerns about delaying redundancy payouts through a string of temporary, “cobbled together roles that would all eventually end”, and about discouraging employers in an industry of this kind from taking on permanent staff.
Not ruled out, but case by case
The Deputy President did not reject the casual-displacement argument in principle. He said: “While I am not rejecting outright the Applicant’s take on Helensburg, I think that it would be very much a case-by-case assessment as to whether it was reasonable to dispense with casuals to create permanent roles in a redundancy scenario.” He identified the level of unfair dismissal protection the casuals hold and the pattern of work as relevant factors, and observed that the employer’s industry “makes a significant use of casual employment because of the uncertainties involved with workloads”. During the hearing he also noted that, if casuals on the Jetwave Lightning who were protected from unfair dismissal were dismissed to make way for Port Hedland employees, the employer would not have a genuine redundancy defence for them, because their jobs would still be required.
At a glance
- Parties: A former Port Hedland employee (represented by the CFMEU) v The Trustee For The Jetwave Marine Services Unit Trust
- Citation: [2026] FWC 3963, Deputy President O’Keeffe, Perth, 15 October 2026
- Section: Fair Work Act 2009, s.394, s.385 and s.389
- Outcome: Jurisdictional objection upheld; dismissal a genuine redundancy; application dismissed
- Who it affects: Employers with mixed permanent and casual workforces making permanent employees redundant
The decision was issued in Perth on 15 October 2026. It leaves the question open for future matters with steadier work patterns or longer contracts. The Deputy President said he “might take a different view if the contract was for a period of years”.
Source: [2026] FWC 3963
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