Fair Work Act 2009

s.120 - Redundancy pay

[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 Aaron Van Dongen.

• [2] Mr Van Dongen 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). The Respondent had been employed for at least 1 year, but less than 2 years. Accordingly, the Respondent is entitled to 4 weeks redundancy pay in accordance with s 119(2) of the Act. The Applicant 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). The Applicant arranged for the Respondent 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 the Applicant. The Respondent declined the offer.

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

[5] The Commission served the application on Mr Van Dongen 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 the Respondent's views on whether they object to the application (attached), by close of business Friday, 27 February 2026.

If the Respondent 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 Van Dongen did not respond. The Commission sent a further email to the Respondent 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."

[7] Chambers contacted Mr Van Dongen by telephone on 9 March 2026 in relation to the previous emails sent to him. Mr Van Dongen advised he was unsure if he was required to respond to the correspondence. Mr Van Dongen was advised to email his response to Chambers, and, if required, seek and extension in providing a response. Mr Van Dongen emailed Chambers on 9 March 2026 stating:

[8] On 11 March 2026, my Chambers asked the Respondent to specifically clarify if he had an objection to the application. On the same day, the Respondent replied stating that he has "...no objections to the application."

[9] In the Form F45A, MacMahon advised that Mr Van Dongen had declined the offer, noting that he would be travelling overseas for family reasons in April 2026. MacMahon further stated that Mr Van Dongen had indicated that fly-in fly-out employment would no longer be suitable to him due to family commitments and that he would prefer to decline the employment now rather than resign shortly upon commencement.

[10] The Applicant arranged for Mr Van Dongen 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 discretion to reduce the redundancy amount.

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

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