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[2020] FWC 4792
defendant. Application to reduce redundancy pay denied; Lee Crane Hire was ordered to pay each Respondent their full redundancy entitlement within 14 days: 16 weeks to Mr Sneek, 12 weeks to Mr Kennedy and 7...
Lee Crane Hire asked the Commission to cancel three former employees' redundancy payments because it had offered them other work. The Commission looked at both offers and the circumstances of each employee. It found that the Biloela-based roles brought a substantial ongoing travel burden, while casual work in Gladstone lacked guaranteed hours and permanent-employment benefits in an uncertain business. Neither offer was acceptable alternative employment. The Commission refused to reduce the payments and ordered the full amounts to be paid within 14 days.
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2,245 words · generated 01/10/2026
Lee Crane Hire operated a mobile crane hire business with depots in Gladstone and Biloela. After a downturn in work at Gladstone, the employer said it could no longer guarantee full-time work to the employees based there. The owner decided to close the Gladstone depot and operate the business through Biloela. The Gladstone permanent roles were no longer required, and the three employees were made redundant ([2]-[3]).
The employees were Robert Sneek, Colin Kennedy and Greg Wiemers. Mr Sneek had more than nine but fewer than ten years of service and an agreement-based redundancy entitlement of 16 weeks. Mr Kennedy had over ten years of service and an entitlement of 12 weeks. Mr Wiemers had more than three but fewer than four years of service and an entitlement of 7 weeks ([5]-[7]). The entitlements described were under clause 2.4.2 of the Lee Crane Hire Pty Ltd Enterprise Agreement 2015.
The employer offered two alternatives. One was to keep doing the same mobile crane work but be based from the Biloela depot. The employer proposed payment for travel time, travel costs, accommodation where required, the same hours, salary and leave entitlements, and a company vehicle. The employees had previously travelled to Biloela and other places as part of their jobs, and the employer said they would continue to work in Gladstone when needed ([18]-[19]). The second option was casual employment in Gladstone doing the same work, but without guaranteed hours ([18]).
The offers followed discussions beginning at a toolbox meeting on 27 February 2020 and a letter on 9 March seeking expressions of interest in working from Biloela. The letter identified assistance including transport between Gladstone and Biloela, a fuel card, accommodation, and overnight and meal allowances ([16]-[17]). At the 30 March meeting, each employee declined both options. Their employment ended on 31 March ([18]-[20]).
Lee Crane Hire applied under s 120(2) of the Fair Work Act 2009 (Cth) to reduce the employees' redundancy pay to nil, on the basis that it had obtained acceptable alternative employment for them ([1], [8]). The parties agreed that the matter be decided on written submissions ([9]). Deputy President Lake found neither offer was acceptable other employment for these employees and declined to reduce their redundancy entitlements. The order required payment of the full amounts within 14 days of the decision ([35]-[36]).
The decision separates the statutory gateway from the discretion that follows it. Section 120(1) applies where an employee has a redundancy-pay entitlement under s 119 and the employer obtains other acceptable employment, or cannot pay the amount. Here the employer relied on the first route. The Deputy President described the entitlement and the obtaining of other acceptable employment as jurisdictional facts that must be established before the Commission may exercise its discretion under s 120(2) ([13]-[14]). The Commission may then reduce the payment to a specified amount, including nil, if it considers that appropriate. The amount after any determination is the reduced amount under s 120(3) ([11], [14]).
The acceptability assessment was objective, not determined simply by whether the employees personally wanted the work or whether the employer had made an offer. The decision drew together authorities stating that the alternative work need not be identical to the old work and that relevant considerations can include the nature of the work, location, pay, hours, security, continuity and personal circumstances ([21]-[25]). It also recognised that a group offer does not necessarily have the same effect for every employee. The relevant factors and their weight may differ with individual circumstances ([21]).
The first option preserved the employees' work and many of its stated conditions, but changed the base from Gladstone to Biloela. The Commission treated that location change as a significant objective difference. It identified the approximate journey as 121 kilometres and 1 hour 24 minutes each way, and noted that overnight stays could be required, although the number of nights was not specified ([27]). The employer proposed to meet travel costs, but the Deputy President considered that payment of those costs did not remove the practical burden of regular travel or the uncertainty about overnight stays. The decision characterised the distance as unreasonable in the circumstances ([29]).
The second option avoided the change of base by keeping the work in Gladstone, but its casual status materially changed the security and benefits associated with the employees' permanent jobs. The decision noted no guaranteed hours or ongoing commitment to provide work, no permanent-employee leave and other benefits, and a decline in the Gladstone business. No evidence explained the long-term position of that business or whether work would continue or decline further ([28]). The uncertainty was important: the employees would not merely have taken a different form of work, but would have faced an uncertain supply of work and reduced employment benefits.
The Commission also considered each employee's personal circumstances. Mr Sneek raised his age, the demands of a 260-kilometre round trip, road conditions and his wife's age and circumstances; the Deputy President accepted those submissions as relevant ([31]). Mr Kennedy raised travel concerns and caring responsibilities for his grandchildren ([32]). Mr Wiemers said his wife had suffered a brain bleed and he was not comfortable leaving her alone through the week ([33]). The decision did not treat these matters as a general veto over changed work. Rather, it considered them alongside the objective features of the two offers.
The conclusion was that neither offer passed the statutory test. Since the employer had not established that it obtained acceptable other employment, the basis for exercising the requested reduction power was absent. The Commission therefore ordered the full agreement-based redundancy entitlements to be paid, rather than reducing them ([35]-[36]).
The judgment does not announce a new statutory test or purport to displace earlier authority. It sets out ss 119 and 120 and explains that s 120(2) confers a discretion, but only after the requirements in s 120(1) are met ([11], [13]-[14]). The case's contribution in the materials provided is its application of existing principles to a combination of relocation, travel and casualisation.
Before this decision, as described in the judgment, the authorities treated “acceptable employment” as an objective assessment. The question is not simply whether the employee accepts the offer, nor is the employer's act of offering work enough to establish acceptability. The work should be compared with the former work using relevant features, and the assessment should be made in the circumstances of the individual employee ([21], [24]-[25]). The authorities also recognised that alternative work need not be identical, and that a refusal based only on personal preference may place full redundancy pay at risk if the offered work is objectively acceptable ([21]).
This decision applied those principles without treating any single factor as automatically decisive. The same duties and some unchanged conditions did not settle the matter because the location shift to Biloela had a material practical effect. Nor did work remaining in Gladstone settle it, because the casual option materially affected security and benefits. The circumstances were assessed together ([26]-[29]).
After the decision, its fact-specific holding was that these particular offers were not acceptable for these three employees. The judgment does not establish a universal distance beyond which a work base is unreasonable, nor a rule that a casual option is always unacceptable. Its reasoning depends on the stated travel burden, the uncertain requirement for overnight stays, the absence of guaranteed hours and the evidence about the declining Gladstone business, combined with the employees' individual circumstances ([27]-[34]).
At [14], the Deputy President says s 120(1)'s conditions are “jurisdictional facts” that must be established before the Commission can use the power to reduce redundancy pay. In plain English, the employer first has to meet the legal gateway. The Commission's discretion to choose a reduced amount, including nil, does not remove that threshold requirement.
At [23], the judgment says that alternative roles need not be identical, but must be assessed objectively by looking at matters such as duties, conditions, pay and location. In plain English, a different job can still qualify, but the comparison has to consider its real features rather than its label or the employee's preference alone.
At [27], the Biloela base is described as about 121 kilometres and 1 hour 24 minutes away from Gladstone. The decision also notes that overnight stays might sometimes be required but the evidence did not establish how often. In plain English, the Commission considered both the regular journey and the uncertainty about time away from home.
At [28], the casual option is described as having no ongoing commitment to provide work, no guaranteed hours, and reduced access to leave and other benefits associated with permanent employment. The future of Gladstone work was also uncertain because the business was in decline and the evidence did not establish its longer-term position. In plain English, keeping the same type of duties did not preserve the security or employment conditions of the former jobs.
At [29], the Deputy President calls the options a “devil's alternative” and concludes that the Biloela travel made them unreasonably distant in the circumstances. In plain English, the two choices each carried a substantial disadvantage: one required a significant change to the work base, and the other offered insecure casual work. This is a description of these offers, not a universal rule for all relocation or casual-work proposals.
At [35]-[36], the Commission finds the options were not “acceptable other employment” and orders payment of the full entitlements. In plain English, the employer did not establish the basis it relied on for reducing the redundancy payments, so the original amounts remained payable under the order.
The decision is most relevant where an employer seeks to reduce redundancy pay under s 120 on the basis that it obtained alternative employment, and the dispute concerns whether that work was objectively acceptable. It provides a useful comparison where a proposed transfer retains the same duties but changes the work base substantially, or where an alternative in the original location changes permanent work to casual work without guaranteed hours.
The features that mattered here included a long, regular journey between Gladstone and Biloela; the travel time and distance; possible overnight stays whose frequency was not identified; the lack of guaranteed work under the casual option; loss of permanent-employment benefits; and uncertainty about the future volume of work in Gladstone ([27]-[29]). The case also illustrates that an employee-specific assessment may require considering relevant caring responsibilities and the practical effect of travel on the individual ([30]-[34]).
The case does not say that a particular distance is always unreasonable, that employer-funded travel can never make a relocation acceptable, or that casual work cannot be acceptable. Nor does it decide whether these same options would be acceptable for different employees with different circumstances or on a different evidentiary record. The judgment's conclusion is tied to the evidence and offers before the Commission.
The supplied judgment contains no citations to later decisions treating this decision as precedent. It was issued on 7 September 2020, and the text provided does not set out any subsequent judicial or Commission consideration of its reasoning. Accordingly, no claim about later treatment can be established from this source alone.
The authorities it does discuss are earlier decisions, not later treatment of Lee Crane Hire. At [21], the Deputy President summarises principles drawn from Spotless, Derole Nominees, Oscar Oscar, Feltex, Vicstaff and DRW Investments. At [24], Derole Nominees is cited for an objective assessment, including the nature of the work, distance of the location and pay arrangements. At [25], Von Bibra is cited for comparing the proposed work with the former work and its terms and conditions. These cases supply the framework applied here; the judgment does not say how later courts have interpreted Lee Crane Hire itself.
The judgment resolves the application on its evidence, but leaves broader questions open. It does not specify a distance or travel-time threshold at which a new work base becomes “unreasonably distant”. It does not explain how travel time, travel costs, transport provision and overnight accommodation should be weighed in other circumstances, beyond considering them as part of the overall assessment here ([27], [29]).
The evidence did not establish how many overnight stays might be required, and the judgment does not determine what evidence would usually be sufficient to resolve that issue. Nor does it set a minimum level of guaranteed work or security for casual employment to be acceptable. It found the combination of casual status, no guaranteed hours, loss of benefits and uncertainty about the declining Gladstone business unacceptable on these facts ([28]).
The decision also does not specify how much weight to give particular family or caring circumstances in a different case. It accepts the submissions of each employee as relevant in assessing acceptability, but it does not create a formula for balancing personal circumstances against pay, duties, distance or other conditions ([30]-[34]). Finally, the decision does not reach the separate question of what reduction would have been appropriate if an acceptable alternative role had been obtained. Because the gateway was not met, that discretionary question did not arise for determination.
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s.120 - Redundancy pay
Variation of redundancy pay - alternative work offered - other employment found to be not acceptable - redundancy pay not varied - application denied.
[1] Lee Crane Hire Pty Ltd (Lee Crane Hire) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Commission reduce to nil the redundancy entitlement of Mr Robert Sneek, Mr Colin Kennedy and Mr Greg Wiemers (the Respondents) who were employees of the company who have refused an alternative offer of employment with Lee Crane Hire following the closure of the Gladstone Depot.
[2] Lee Crane Hire operates a mobile crane hire business and operates another depot at Biloela. There has been a downturn in business of the Gladstone Depot such that the business could no longer guarantee full time work to the employees based at the Depot. The owner of the business decided to close the Gladstone Depot and operate all his business through the Biloela depot.
[3] As a result, the permanent roles in Gladstone were no longer required to be performed by anyone and those employees were made redundant.
[4] The terms and conditions of employment of the Employees were, at all material times, provided by the Lee Crane Hire Pty Ltd Enterprise Agreement 2015 (Agreement). It is pertinent to outline each of the three Respondents and their respective redundancy entitlements.
[5] Mr Sneek commenced employment with the Applicant in October 2010. His employment was terminated for reasons of redundancy on 31 March 2020. Mr Sneek's period of continuous service with the Applicant was 9 years but less than 10 years. Under clause 2.4.2 of the Agreement Mr Sneek was entitled to 16 weeks of redundancy pay.
[6] Mr Wiemers commenced employment with the Applicant in May 2016. His employment was terminated for reasons of redundancy on 31 March 2020. Mr Wiemers' period of continuous service with the Applicant was 3 years but less than 4 years. Under clause 2.4.2 of the Agreement Mr Wiemers was entitled to 7 weeks of redundancy pay.
[7] Mr Kennedy commenced employment with the Applicant in December 2009. His employment was terminated for reasons of redundancy on 31 March 2020. Mr Kennedy's period of continuous service with the Applicant was over 10 years. Under clause 2.4.2 of the Agreement Mr Kennedy was entitled to 12 weeks of redundancy pay.
[8] The application to vary the redundancy pay of the Respondents to nil was on the basis that Lee Cranes Hire had provided acceptable alternative employment for all of the Respondents.
[9] The parties agreed on 20 July 2020 to have the matter determined on the papers with the submissions provided.
[10] The matter for determination is whether Lee Crane Hire provided other acceptable work and if so, should the commission exercise discretion to vary the redundancy? If a variation was granted, the natural corollary is that I must determine to what extent the redundancy should be varied.
[11] Section 119 and 120 of the Act provide:
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Employee's period of continuous service with the employer on termination
120 Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.
(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.
[12] Section 121 of the Act provides:
121 Exclusions from obligation to pay redundancy pay
(1) Section 119 does not apply to the termination of an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee's period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
(2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee's employment.
(3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:
(a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and
(b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.
[13] Section 120 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.
[14] Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under , and the employer 'obtains other acceptable employment' for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. then 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 , the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see
[15] Lee Crane Hire ran the same process for each of the Respondents.
[16] On 27 February the Respondents attended a toolbox meeting at the Gladstone Depot of Lee Crane Hire with Mr Greg Lee, Mrs Lesley Lee and several other employees. At this meeting, the Respondents were informed of the proposed closure of the Gladstone office and that Lee Crane Hire would still be maintaining another yard where Lee Crane Hire would work
from and still perform work as required in the Gladstone area. As the work had been on the
decline in Gladstone, Lee Crane Hire could not guarantee full time hours in Gladstone so the
potential options regarding alternative employment were proposed.
[17] A letter was issued to the Respondents on 9 March 2020 requesting an expression of interest:
Due to the company's restructure and changing business needs, the company is now seeking to:
ascertain the number of Gladstone employees interested in working out of the Biloela Depot; and
confirm the assistance available to employees opting for such transition.
In accordance with the company's existing EBA, the following assistance will be available to Gladstone employees
Fuel card for company transport between Gladstone to Biloela;
Overnight and meal allowances (see section 4.4 Allowances).
[18] A follow up meeting with each of the respondents was held on 30 March 2020 where the employees were offered either of two options:
The first option was for each of the Respondents to continue in the same role, but be based out of Biloela and Gladstone with the only Depot being in Biloela. This option would include payment for time spent travelling to work and accommodation, the same hours of work, a company vehicle supplied, the same salary and leave entitlements. Additionally, as the role was the same mobile crane operations role, the travel to different sites would be largely unchanged; or
The second option was to take on casual employment for Lee Crane Hire in Gladstone, this would involve the Respondents performing the same work, however there would be no guaranteed hours of work.
[19] In essence, the Employees would retain their current role with the Applicant but would be based out of Biloela instead of Gladstone. It is noted that whilst based in Gladstone, the Respondents regularly travelled to Biloela and beyond to perform their work. They were advised that the same would happen based in Biloela. That is, they would still regularly perform work in Gladstone, but the office would not be based there.
[20] During the meeting of 30 March 2020, each of the Respondents refused both options for personal reasons. The were all terminated on the 31 March 2020.
[21] In Spotless Services Australia Limited t/as Alliance Catering [2016] FWC 4505 ('Spotless'), Deputy President Sams usefully identified the authorities relevant to "other acceptable employment" and the task to be performed by the Commission:
[60] The question of what constitutes 'other acceptable employment' in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:
'What constitutes "acceptable alternative employment" is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification "acceptable" is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.
This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as "acceptable" merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is "acceptable".
The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.' (my emphasis)
[61] In Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901 ('Oscar Oscar'), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:
'[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.
[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.' (my emphasis)
[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:
'[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.
[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.'
[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 ('Vicstaff'), Bissett C said at paras [29]-[30]:
'[29] 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.
[30] It is therefore incumbent upon the employer (Vicstaff) 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.'
[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461, I said at para [183]:
'[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:
This list is not exhaustive. There may be other relevant factors.'
[65] The above decisions have some common features, including:
[22] The question remains whether the offer by Lee Crane Hire was on terms and conditions no less favourable than the terms and conditions that the Respondents experienced prior to the restructure.
[23] The proposed roles do not have to be identical and in considering this the Commission must determine the matter objectively weighing up aspects of the role that include duties, conditions, pay level and location to mention some of them.
[24] Relevant to this point in Derole Nominees[1], the Full Bench of the Australian Industrial Relations Commission (AIRC) found:
What constitutes "acceptable alternative employment" is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification "acceptable" is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.
[25] A further explanation on this point was put forward by in Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 by Richards SDP, who adopted the principles in Derole Nominees and said at paras [27]-[27]:
"[26] In contrast, the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee's original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed."
[26] Having regard to the above authorities, I consider the two options given to the Respondents do not constitute acceptable alternative work. Whilst the work remained the same for each of the Respondents, there was a significant objective difference in each of the options. There was more than some detrimental alteration to the terms and conditions of the proposed employment which rendered the options unacceptable.
[27] The first option of continuing the same work based from the Depot in Biloela would impose a significant impost on the employees being required to travel from Gladstone to Biloela, the travel time is approximately 1h 24 min (121kms). The Applicant indicated that all travel costs for the travel would be borne by the Applicant (as per the Agreement) however, there would be also the occasional requirement to stay overnight. The number of nights away from the home location of Gladstone was not indicated. It is also to be noted that each of the employees did some level of travel to Biloela and did stay away from home on occasions however this was not quantified by either the Applicant or the Respondent.
[28] The other option of casual work still in Gladstone is equally perilous for the Respondents. As casuals there was no ongoing commitment to work being provided. If the market for mobile crane service was in decline such that the Depot was being closed it may continue until all work effectively dries up. As a casual, there would no longer be the entitlement to leave, long service leave and other benefits that accrue to permanent work. Further, it was acknowledged that the Gladstone business was in decline. No data was put forward on the long term future of the Gladstone business - whether it was in continued decline, had it hit rock bottom, or was there to be a further decline to even lower levels? For the Respondents the relocation of work to be based out of Biloela was a significant one, steeped in uncertainty and laden with risk - in these circumstances the alternative arrangement cannot be considered acceptable.
[29] It is the devil's alternative: move to a new location some 121kms away and incur a practical detriment on a continuous basis or, keep your job, but as a casual with no assurance of work in an evidently declining market. This should not be classified as acceptable alternative work that would release the employer from their obligation to pay out a redundancy entitlement. In short, the travel to Biloela makes the options, in line with the authority cited, unreasonably distant.
[36] Taking into account all of the circumstances, I consider that I should not exercise my discretion to reduce the Respondents redundancy pay. I Order that each of the Respondents receive their full respective redundancy entitlements, as outlined in [5]-[7] above, within 14 days of this decision being issued.
Printed by authority of the Commonwealth Government Printer
Lee Crane Hire Pty Ltd
Robert Sneek, Colin Kennedy and Greg Wiemers [2020] FWC 4792
(2010) 204 IR 233
(1990) 140 IR 123
Application to reduce redundancy pay denied; Lee Crane Hire was ordered to pay each Respondent their full redundancy entitlement within 14 days: 16 weeks to Mr Sneek, 12 weeks to Mr Kennedy and 7 weeks to Mr Wiemers.
[30] This decision is made keeping in mind the personal situation of the Respondents and I will briefly touch on some of the relevant criteria.
[31] Mr Sneek submitted that at 64 years of age performing a 260km round trip was not practical, especially given the conditions of travel between Gladstone and Biloela. This includes the time of day (being either early morning or later in the evening), road condition and potential for wild animals requiring constant alertness to avoid harm. Inherent in extra time spent travelling is the extra time and energy expended as what would be part of regular employment. Mr Sneek further submitted that his wife is several years older than himself and that to leave the entire week was not practical. I accept these submissions and find them to relevant in determining the employment was not acceptable for Mr Sneek.
[32] Mr Kennedy put forward similar submissions in regard to the travel conditions and also noted that he has significant family responsibilities, including caring for his grandchildren. I accept these submissions and find them to relevant in determining the employment was not acceptable for Mr Kennedy.
[33] Mr Wiemers submitted a similar statement regarding travel. As to his personal responsibilities, his wife has suffered a bleed on the brain and he was not comfortable leaving her alone throughout the week. accept these submissions and find them to relevant in determining the employment was not acceptable for Mr Wiemers.
[34] It is noted that all three Respondents made similar submissions regarding the travel between Biloela and Gladstone and the impact such a journey would have. As to evidentiary value, it is not unsurprising that this statement is echoed and I do not detract any weight from this submission on the ground that all three Respondents have raised it - it is a live and significant issue which is of concern to the Respondents.
[35] My considered view is that the two employment options offered by Lee Crane Pty Ltd are not 'acceptable other employment' for the purpose of s.120(1)(b)(i) of the Act.