s.120 - Redundancy pay

Variation of redundancy pay - alternative employment offered - no objection from affected employee - alternative employment acceptable - redundancy varied.

• [1] On 14 March 2025, Mater Misericordiae Ltd Trading as Mater (the Applicant) applied to the Fair Work Commission (the Commission) under s.120(2) of the Fair Work Act 2009 (the Act) to vary the redundancy entitlement of Ms Karen Hong to nil. The Applicant applies for variation on the basis that acceptable alternative employment has been obtained for Ms Hong.

• [2] Ms Hong was employed with the Applicant in the role of RTO Educator - Curriculum Development.

• [3] On 30 January 2025, the Applicant began a consultation process in relation to restructuring its Education and Training business area. On 18 February 2025, a decision was made that curriculum development as a separate role was no longer required and the positions of RTO Educator - Curriculum Development would be made redundant.[1] The responsibilities for curriculum development would be absorbed into the existing roles of Educator.

• [4] On 18 February 2025, the Applicant was offered redeployment into a vacant Educator role. The Applicant accepted this offer of redeployment and signed the new contract on 28 February 2025.

• [5] On 20 March 2025, my Chambers contacted Ms Hong asking her to respond by close of business 27 March 2025 if she opposed to the variation application. No objection was received from Ms Hong.

Should the affected employees' redundancy be varied?

• [6] I am satisfied that the Applicant no longer requires the role of RTO Educator - Curriculum Development to be performed by anyone, although it appears that some of the curriculum duties have been absorbed into the Educator role. Therefore, Ms Hong is entitled to a redundancy payment under s.119(1)(a) of the Act. Therefore, I must consider whether the Applicant has obtained acceptable employment for Ms Hong under s.120(1)(b)(i) of the Act.

• [7] Section 120 of the Act states as follows:

"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

(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."

• [8] Past Fair Work Commission decisions explain 'other acceptable employment' as the following:

• 1. This is assessed objectively. Other acceptable employment does not mean that the role must be acceptable to the employee. An employee's prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively acceptable.[2]

• 2. Acceptable employment is not identical employment, as no two jobs could be exactly the same. Alternative employment can be acceptable even there may be some inconvenience or some detrimental alteration to the terms and conditions of employment.[3] It is a matter of degree.

• 3. An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.[4] Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[5]

1. Identifiable comparisons of the redundant role and the alternate role can be considered in determining whether reasonable alternative employment has been offered with considerations including (but not limited to depending on what the Commission deems as appropriate):

a) nature of the work;

b) pay rates;

c) working hours;

d) skills;

e) duties;

f) seniority;

j) travelling time;

k) capacity to perform job;

• l) location of work (which would now incorporate a requirement to work from home or in the office);[6]

• m) loss of flexibility (such as caring responsibilities).[7]

• [9] I am satisfied that the Applicant was the "strong moving force in the creation of the available opportunity" for Ms Hong.[8] The Applicant redeployed Ms Hong into the role of Educator.

• [10] Having reviewed the contracts of employment for the Applicant for the roles of RTO Educator - Curriculum Development and Educator, I am satisfied that the Educator role is acceptable alternative employment. The salary for Ms Hong's Educator role is higher. The location of both roles and the hours of work are the same. The qualifications needed for both roles appear to be the same. In relation to a change of duties, including less focus on curriculum development, I have received no submissions from Ms Hong to suggest that this is unacceptable.

• [11] I am satisfied that that the redeployment role is acceptable alternative employment. I am satisfied that the Applicant was a strong moving force in the creation of the alternative employment role for Ms Hong. The redundancy entitlement for Ms Hong is therefore varied to nil.

[2] NUW v Tontine Fibres [2007] AIRCFB 1016 at [23],

[3] Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia [2006] AIRC 737 at [89] (Watson SDP).

[4] Application by Spotless Services Australia Limited ('Spotless') [2013] FWC 4484 at 14.

[6] UXC Connect v Moore [2012] FWA 4296.

[7] Heath Family Trust T/A Focus People Pty Ltd [2021] FWC 2779 at [21] (Lee C).

[8] Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737; (2014) 245 IR 287; [2014] FWCFB

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