s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Courtney Harris-Spencer & Michelle Harris-Spencer

[1] ASN Events Pty Ltd (ASN Events) has filed an application pursuant to s.120 of the Fair Work Act 2009 (Cth) (Act) seeking to vary the redundancy pay of Ms Courtney Harris-Spencer and Ms Michelle Harris-Spencer (together the Respondents). The Respondents object to the application.

[2] In its Form F45A - Application to vary redundancy pay (Form F45A), ASN Events sought to vary Ms Courtney Harris-Spencer's redundancy pay from 11 weeks to 5.5 weeks, and Ms Michelle Harris-Spencer's redundancy pay from 16 weeks to 8 weeks on the basis that it had obtained other acceptable employment for them.

[3] I issued Directions to the parties, and the parties filed materials in compliance with the Directions. The parties agreed for the matter to be determined on the papers.

[4] The Respondents were employed in ASN Events' Finance team, located at the Hastings office. In January 2026, ASN Events closed its Hastings office, citing the need to minimise operating costs and reduce overheads. ASN Events say that the decision to close the Hastings office was also motivated by the need to have the team work collaboratively together from the one location in order to improve performance of the overall function.

[5] ASN Events says that it identified suitable redeployment opportunities for the Respondents in that they were offered to retain their roles and remain employed with ASN Events, but they would be required to relocate to the Melbourne CBD office. ASN Events say that all other remaining members of the Finance team work from the Melbourne CBD office. ASN Events submits that it is not seeking to eliminate to redundancy entirely, recognising that the relocation imposed some practical inconvenience to the Respondents. It says that a 50% reduction in the redundancy pay is an appropriate, balanced and proportionate outcome because the employment was objectively acceptable and the Respondents declined for personal reasons.

[6] ASN Events submits that the relocation is within the scope of their contractual obligations, and seeks to rely on clause 4.2 of the affected employees' employment contract which provides the following:

You acknowledge that you may also be required to relocate to another place of work from time to time without compensation or additional payment in accordance with the needs of ASN's business.

[7] Both Respondents say that the role offered was not acceptable employment because of the increased travel time between the Hastings office and the Melbourne CBD office. Further, Ms Michelle Harris-Spencer submits that the role offered was not suitable alternate employment because of her caring responsibilities.

[8] Section 120 of the Act confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.

[9] Section 120(1) of the Act states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer 'obtains other acceptable employment' for the employee. These are the jurisdictional facts that must be established before the Commission can exercise its discretion. Section 120(2) of the Act states that the Commission 'may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate'. If the Commission makes an order under s.120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (s.120(3)).

• [10] The onus of establishing that the alternative employment in question is acceptable rests with the Applicant employer[1] and it is a serious step for the Commission to make an order to limit or remove an employee's statutory entitlement to redundancy payments.[2] In order to establish whether the alternative employment obtained by the employer is acceptable, it is necessary to have regard to all relevant matters including factors such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters including the location of the employment and travelling time.[3]

[11] In Vicstaff Pty Ltd (t/as Stratco) v May [2010] FWA 3141; (2010) 204 IR 233, Bissett C said at paras [29]-[30]:

'The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

It is therefore incumbent upon the employer in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.'

[12] ASN Events is not seeking to reduce the payment of redundancy pay to the affected employees because it cannot pay the amount owed. It is also not contested that ASN Events 'obtained' employment for the Respondents. The key question to be determined is whether this employment can be considered 'other acceptable employment'. If so, then I must decide whether to exercise my discretion to reduce the amount of the Respondents' redundancy pay.

[13] I have considered clause 4.2 the employment contract which states that an employee may also be required to relocate to another place of work from time to time without compensation or additional payment in accordance with the needs of ASN's business. ASN Events did not make fulsome submissions on this point, except to say that the relocation was within the scope of both employees' contractual obligations, and that it had gone beyond its contractual obligations by offering financial and practical accommodations to support the relocation. I make no finding on what obligations may or may not arise from clause 4.2 because I do not consider it relevant to my consideration of whether I should exercise my discretion to reduce the redundancy pay. If ASN Events were of the view it could relocate the Respondents under clause 4.2, it did not seek to exercise this contractual right. Instead, the Applicant decided to pay the Respondents a redundancy.

• [14] Ms Courtney Harris-Spencer was employed by ASN Events for a period of 6 years and 9 months, before the termination of her employment by reason of redundancy.[4] It is not in dispute that she is entitled to 11 weeks redundancy pay.

[15] ASN Events says that it obtained other acceptable employment for Ms Courtney Harris-Spencer, within the meaning of s.120 of the Act, in that it offered her a redeployment opportunity to the Melbourne CBD office. ASN Events submits, and I accept, that the redeployment opportunity is like for like in all aspects of the role except for the working location.

[16] Ms Courtney Harris-Spencer submits that the travel time to the Hastings office is between 10 to 12 minutes one way, and that the redeployment role has a proposed travel time, according to Google Maps, of between 1 hour 15 minutes to 2 hours one way. She also submits that the relocation results in a significant increase in annual travel expenses, amounting to approximately $9,000 per year.

[17] ASN Events says that during the consultation phase, flexible work options such as different start and finish times, the ability to work from the Melbourne CBD office for two days a week for the first three months, followed by 3 days a week thereafter and a travel allowance of $2,500 was offered to Ms Courtney Harris-Spencer. Ms Courtney Harris-Spencer proposed alternatives including working from home or from a central location within a reasonable commuting distance.

• [18] The meaning of 'other acceptable employment' has been considered by the Commission. Importantly, 'acceptable' requires that the alternative employment meets a relevant objective test. The test is not whether the alternative employment is identical, but requires consideration of whether the work is of a like nature, the effect of location, pay, the hours of work, workload, job security, fringe benefits, compliance with statutory conditions, seniority and the like, and not whether the employee finds the alternative employment to be acceptable.[5]

[19] I do not consider the alternate employment at the Melbourne CBD location is 'acceptable' because of the significant additional travel time of at least 1 hour each way, and the additional out of pocket cost (which is only partially covered by ASN Events' offer to pay a $2500 travel allowance). I consider the additional temporary flexibilities offered by ASN Events to Ms Courtney Harris-Spencer of different start and finish times and a phased in approach to five days a week at the Melbourne CBD location do not adequately address this disadvantage.

[20] For these reasons I am not satisfied that the other employment obtained for Ms Courtney Harris-Spencer was acceptable.

• [21] Ms Michelle Harris-Spencer was employed by ASN Events for a period of 9 years and 3 months, before the termination of her employment by reason of redundancy.[6] It is not in dispute that Ms Michelle Harris-Spencer is entitled to 16 weeks redundancy pay.

[22] ASN Events says that it obtained other acceptable employment for Ms Michelle Harris-Spencer within the meaning of s.120 of the Act, in that it offered her a redeployment opportunity to the Melbourne CBD office. ASN Events submits, and I accept, that the redeployment opportunity is like for like in all aspects of the role except for the working location.

• [23] Ms Michelle Harris-Spencer submits that the travel time to the Hastings office is approximately 4 minutes one way, and that the redeployment role in the Melbourne CBD office has a proposed travel time, according to Google Maps, of between 1 hour 5 minutes to 2 hours one way.[7] She also submits that the relocation results in a significant increase in annual travel expenses, from $295.68 per year to approximately $8,262.14 per year.

[24] ASN Events says that during the consultation phase, flexible work options such as different start and finish times, the ability to work from the Melbourne CBD office for two days a week for the first three months, followed by 3 days a week thereafter and a travel allowance of $2,500 was offered to Ms Michelle Harris-Spencer. Ms Michelle Harris-Spencer says that she was not completely opposed to the relocation, but that her childcare arrangements and placement logistics are not solely within her control as they involve oversight from a government authority, which impacts her ability to be based at the Melbourne CBD location.

[25] Ms Michelle Harris-Spencer proposed alternatives including working from home and attending the Melbourne CBD office on an ad hoc basis when required, or alternatively, attending the Melbourne CBD office one day a week on a regular basis.

[26] I consider the additional temporary flexibilities offered by ASN Events of different start and finish times and a phased in approach to working her days at the Melbourne CBD location do not adequately address Ms Michelle Harris-Spencer's childcare responsibilities, nor the disadvantage of the additional travel time. For these reasons, I do not consider the alternate employment at the Melbourne CBD office is 'acceptable'.

• [27] For the reasons outlined above, I am not satisfied that ASN Events obtained other acceptable employment for Ms Courtney Harris-Spencer or Ms Michelle Harris-Spencer. The application is dismissed, and an Order[8] to this effect is issued with the Decision.

[1] Target Australia Pty Ltd v Shop, Distributive and Allied Employees Association re Target Retail Agreement 2001 - PR916204 [2002] AIRC 369 at [6].

[2] Clothing & Allied Trades Union v Hot Tuna (1988) 27 IR 226.

[3] Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole.

[5] Op Cit; Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999; Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.

[7] Submissions of Ms Michelle Harris-Spencer, Annexure D.

[8] PR797233.

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