The position was a similar role working the same roster on the slightly more money. The hours of work increase from 38 hours to 40 hours per week with the additional hours being compensated for. The employee was familiar with this business as the owners of her current employer were on good terms with her potential future employer. The employee was offered the position and accepted the role.

The Applicant is currently employed in that position."

(Note: references to Applicant in this passage do not necessarily correlate to the use of that term in this Decision)

• [14] The Respondent concedes that the new role and her redundant role are similar. However, the Respondent notes several items to reflect the differences in the positions:

"The new owners Accounts personnel set up a meet and greet explaining the job

a. There were no salary negotiations - even when I asked

The role is similar yes but to say I am on more money is working more hours and paying for parking has put me behind than at Kelly Group. The job is not like for like with no salary negotiation and my flexibility requests not taken into consideration."

• [15] The relevant provision of the Act is set out below:

"120 Variation of redundancy pay for other employment or incapacity to pay

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(i) obtains other acceptable employment for the employee; or

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination."

• [16] I must first be satisfied that the position in question was obtained by the Applicant, as required by the Act. Only after determining that the position was obtained will I then determine whether the position is acceptable. If the position is found to be obtained and acceptable, I must then consider whether to reduce the amount owing to the Respondent.

• [17] In relation to the question of whether the Applicant obtained the position, the Full Bench has clarified that "an employer "obtains" other acceptable employment when it acquires or gets the employment by its conscious, intended acts."[1] Mere facilitation of employment opportunities falls short of the obtain requirement.[2]

• [18] On assessment of the materials before the Commission, it is clear and uncontested that the alternative role was obtained by the Applicant.

• [19] The primary contention between the parties is the similarity between the new role and the redundant role.

• [20] It has generally been accepted by the Commission that the following factors should be considered in relation to section 120(b)(i) of the Act:

• The comparability of the work with that performed in the current role;

• Whether the employee will have continuity of service in the new role;

• Travel and/or the cost of travel that is additional to that relevant to the original employment;

• [21] The Respondent disputes the Applicant's submission that the new position pays more. Notably, the Respondent highlights that the new position requires her to work two more hours per week and she is also required to pay for parking. The Respondent concludes that these additional burdens put her behind the remuneration in the redundant role.

• [22] The Respondent also submits that the benefits, largely in relation to flexible working arrangements, differ between the roles. Notably, the new role offers, what appears to be, no flexibility or accommodations. The Respondent was also unable to negotiate the salary for the new position.

• [23] I am not satisfied that the additional two hours or a slight reduction in remuneration constitutes any notable difference. I am also not satisfied that the lack of flexible working arrangements and the inability to negotiate salary constitutes any notable difference between the positions. These conclusions are made only in reference to whether the new role is other acceptable employment as specified in the Act. I do not doubt that the items raised by the Respondent reflect differences in the terms and conditions of the two positions and understandably are not beneficial to the Respondent.

• [24] The Respondent, in their materials, concedes that the roles are similar. Due to the similarity between the roles themselves, and the extent and nature of the differences noted by the Respondent, I am satisfied that the role is other acceptable employment for the purposes of the Act.

• [25] Nevertheless, I accept the Respondent's submissions that the change in flexible working arrangements would constitute a departing from the position made redundant.

• [26] In the circumstances, I am satisfied that the position offered by the Applicant is other acceptable employment but, I am not satisfied the redundancy amount owing to the Respondent should be reduced to nil.

• [27] Having considered all the factors outlined above, and the submissions provided by the parties, I have determined that the position offered and accepted was other acceptable employment for the purposes of section 120(1)(b)(i) of the Act.

• [28] I note that the Applicant was seeking the Commission to reduce the redundancy payment the Respondent is entitled to nil.

• [29] I have considered the submissions, competing interests, nature of changes, the extent of the changes, and other factors outlined above and determine that, in this instance, the redundancy payment payable to the Respondent will be reduced by 25%.

• [30] An Order to that effect will be issued.[4]

[1] [2022] FWCFB 173, [49].

[2] [2022] FWCFB 173, [47].

[3] [2019] FWC 756, [24]; [2016] FWC 2880, [11].

[4] [PR767137].

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