Fair Work Act 2009

s.120 - Redundancy pay

Variation of redundancy pay - employer obtaining other acceptable employment for the employee - redundancy pay reduced to $0

[1] This decision concerns an application by MacMahon Contractors Pty Ltd (MacMahon) under section 120 of the Fair Work Act 2009 to vary the redundancy pay owing to an employee, Mr Warren Sturrock.

• [2] Mr Sturrock was employed under the Macmahon Tropicana Surface Mining Agreement 2023 (the Agreement).[1] Clause 14 of the Agreement provides that the eligible employees are entitled to redundancy payments in accordance with the Act and the National Employment Standards (NES). Mr Sturrock had been employed for 8 years and 5 months. Accordingly, Mr Sturrock is entitled to 14 weeks redundancy pay in accordance with s 119(2) of the Act. MacMahon seeks to vary the entitlement to zero weeks.

[3] MacMahon sold the drill and blast division of their business to Redline Resources Pty Ltd (Redline). MacMahon arranged for Mr Sturrock to be employed by Redline on the same salary, conditions and duties as before. The offer also indicated that the employment would be governed by the same Agreement as his original employment with MacMahon. Mr Sturrock declined the offer.

[4] On this basis, MacMahon submitted that no redundancy payment should be made.

[5] The Commission served the application on Mr Sturrock on 25 February 2026 as follows:

I refer to the above matter and advise Commissioner Durham has carriage. All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Commissioner Durham's Chambers via Chambers.Durham.C@fwc.gov.au, copying in the other parties to this matter.

The Commissioner seeks Mr Sturrock's views on whether they object to the application (attached), by close of business Friday, 27 February 2026.

If Mr Sturrock does not object to the application, then the Commissioner proposes the matter be dealt with on the papers, subject to any objections to proceeding in this manner from the parties.

[6] Mr Sturrock did not respond. The Commission sent a further email to Mr Sturrock on 3 March 2026 as follows:

Reference is made to the above matter and below email.

You were asked to provide your views on the Application by close of business Friday, 27 February 2026.

Chambers has not received any correspondence from you.

Please provide a response by close of business today, 3 March 2026."

[8] Chambers contacted Mr Sturrock by telephone on 9 March 2026 in relation to the previous emails sent to him. Mr Sturrock advised that the emails must have been received into his junk folder and he undertook to reply to the correspondence from Chambers. Mr Sturrock emailed Chambers on 11 March 2026 stating:

"Well quite frankly I just think it's a piss poor excuse for macmahon to not have to pay redundancy, by palming us off to another company, a company I served for nearly 9 years. My intention was to stay with macmahon til hopefully retirement, but was never given the option. But I'm also not going to waste my time trying to fight it"

[9] MacMahon arranged for Mr Sturrock to be employed by Redline at the same salary, conditions and through the same Agreement. The roles were almost identical in nearly all respects. In all of the circumstances I am satisfied that it is appropriate to exercise my discretion to reduce the redundancy amount.

[10] I have determined that the redundancy payment should be reduced to an amount of $0. I order accordingly.

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