s.120 - Redundancy pay

Variation of redundancy pay - Acceptable employment offered - Offer rejected - Redundancy pay reduced to zero.

• [1] This decision concerns an application by Mater Misericordiae Limited T/A Mater (Mater) under s.120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Ms Robyn Tyler (Ms Tyler).

• [2] Ms Tyler has been employed by Mater for approximately 6 years, entitling her to 11 weeks or $18,699.6814 in redundancy payment.

• [3] Mater submitted that Ms Tyler had been offered a suitable alternative position, which had been rejected by Ms Tyler and therefore the redundancy payment should be reduced to nothing.

• [4] Section 120 of the Act states:

"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."

• [5] On 21 January 2019 Ms Tyler's employment commenced with Mater as an RTO Educator on a 12-month fixed-term contract. On 3 December 2019 Mater extended Ms Tyler's fixed-term contract in the same role for a further 12 months until 26 December 2021. On 17 June 2021, Ms Tyler was appointed as a permanent part-time Educator - Curriculum design.

• [6] On 30 January 2025, Mater commenced consultation with Ms Tyler regarding structural changes within their Education and Training division. As part of their structural changes, Ms Tyler's role as Educator - Curriculum design was identified as no longer required.

• [7] Ms Tyler was issued a letter outlining the impact of the proposed changes on her employment and inviting her to provide feedback.

• [8] On 9 February 2025, Ms Tyler provided feedback by email:

Below is my feedback regarding our change to work role. I have tried to keep this to dot

points so if you need any more information or would like to have a chat about any of these please let me know.

• Integrating the curriculum staff into the everyday workspaces of the educators has worked really well in the certificate space. It allow for 'watercooler' conversations regarding curriculum and processes around it.
• I have concerns however regarding curriculum staff reporting to other areas of the business who may not understand the finer details of the curriculum role, workload and timeframes.
• Currently exists great confusion around Ed changes to curriculum content, with a distinct lack of process and educators blatantly refusing to contribute to content improvements.
• Distinct lack of skill and understanding from Ed in this space. Evident in the work produces in the VETiS team over the Christmas downtime. Some Ed yet to produce work on their designated unit.
• It is not our first attempt to work with Ed as content creators and it was not successful last time.

Workload and Integrity of curriculum vs educator tasks:

• This has been a challenge in the delivery team in the past with competent staff being allocated a significantly higher workload than others with no reward.
• I am concerned that the curriculum work will be additional work on top of a normal teaching load. This has already begun to occur to due my experience.
• It was obvious in the conversation with Jo L that if I accepted the proposed job role, I would be an educator first but with added expectations regarding curriculum but not necessary time in which to complete these tasks.
• E.g. Discussion regarding teaching Cert IV AHA, 1 day NTT and 1 day curriculum whilst other staff allocated 2 NTT days. Anne W is currently in this situation 3 days VETiS, 1 day NTT and 1 day curriculum whilst more experienced VETiS educators 2 days NTT.
• e.g. Day 1 of my recent educator experience, I received an email directing me to sign up for high school health adventure outside my current cohort workload.
• There has been no suggestion as to how to ensure that sufficient time is allocated to curriculum development.
• I also have concerns regarding the amount of work to be done within the certificate space: This will take years if it is left solely to educators.
• VETiS development
• AIN specialty
• IS redevelopment (new product of scope)
• New pathology unit
• Cert III AHA?

• Currently I am struggling with 2 days compliance/best education practice (curriculum) and 3 days teaching/NTT in an incredibly non-compliant program not designed to be delivered in its current form, minimal education vs nominal hours, incorrect timetables and a distinct lack of process and guidance within the team.
• Concerns regarding compliance have been raised repeatedly over the years without change.
• Current educators and education lead admitting to not completing assessments as they are too long, just signing off assessments not completed and signing 1 Audit checklist and photocopying it for each student in the class (and instructing others to do so)
• I am not the only staff member asked to assist in the VETiS area conflicted.

• There has already been an expectation voiced on several occasions for me to use my curriculum skills to teach/guide/monitor compliance/project manage due to additional skill area without compensation for this.
• Conversely, If I am to be teach the AHA program as an Allied Health Professional then I would expect to be compensated for this also. To my understanding I am the only person who meets the criteria of the qualification (outside Annie) however another educator is being floated as an option. (not 100% sure her quals meet).
• A move to SDL sees the development of additional online learning and I am the only CD staff member that can proficiently use all of our online platforms and the most experienced online developer in our team. This is a skill set that our educators don't have and asking them to create would take additional education, time and log in access.

I hope all of these points make sense. If you would like to discuss any of these or would like clarification, please let me know."

• [9] The consultation period ended on 12 February 2025, and Mater met with Ms Tyler on 18 February 2025 to offer her an alternative suitable position within the organisation as an Educator. Mater advised Ms Tyler that if she declined the alternative role, Mater would apply to the Commission to reduce her redundancy entitlement.

• [10] Ms Tyler declined the alternative position offered, citing the following reasons:

a. The role would negatively impact her work-life balance.

b. The new role would not accommodate her extracurricular sporting activities and associated post-graduate study.

c. The new role required onsite attendance during standard working hours.

• [11] On 11 March 2025, Mater applied to the Commission to vary the redundancy pay under s.120 of the Act.

• [12] On 21 March 2025, I conducted a directions hearing and the matter was heard on 29 April 2025.

• [13] Ms Tyler said she had been working unofficially in this role since January 2025, in that she was teaching and performing the curriculum work. Ms Tyler acknowledged that there would be changes to that once the new position came in however, they would be unknown changes, and her decision was made based on the experience she was having at the time.

• [14] Mater filed a witness statement from Ms Tess Eames which Ms Eames adopted as her evidence.[1] Ms Tyler adopted the written material filed and contained in the Court Book at pages 67 and 68 as her evidence. Ms Tyler indicated in response to the statement of Ms Eames she was agreeable to working on site but would have required some working from home. Ms Tyler said that was the only issue she had with the statement of Ms Eames and said she could not get a clear answer on that.

• [15] Ms Tyler put to Ms Eames that she did not object to working onsite and asked where the reference to this in Ms Eames evidence came from. Ms Eames said it was from Ms Tyler's "resignation" letter.

• [16] Ms Eames said the role was intended to be on site for 38 hours per week based at South Brisbane, but it may require attendance at other sites in relation to student placement. Ms Tyler said that the standard work hours were not necessarily going to be the same. It was agreed that both the old role, and the new role were 38 hours per week positions.

• [17] Ms Eames said the standard hours for the curriculum team would align with the broader education team. Ms Eames said the default position for the Mater is that roles are full time in the office, and the Remote Work policy applies where it is operationally appropriate. Ms Eames maintained the hours of work would remain the same.

• [18] Ms Tyler said that it was made clear to her that the hours of work for the education delivery time were 7.30am to 3.36pm in the new role and this was what would be expected from Ms Tyler moving forward.

• [19] It was put to Ms Tyler that the Decision Paper concerning the restructure included a decision that the Program Coordinator curriculum position would remain and assist the Manager - Education with curriculum oversight and development, and the reporting line would remain to the Manager - Education. Mater submitted that this showed her feedback was taken onboard. Ms Tyler said the concern she had around that was the input from other areas, and whether that would meet the compliance needs.

• [20] Ms Tyler agreed that she had experienced high workloads in the past in her role at the Mater, and her manager in the past had shown flexibility around managing that. Mater said the reason it may not be able to continue in this way was the delivery method in the future including teaching. Ms Tyler said she did not believe the new role had safeguards put in place around workload.

• [21] Ms Tyler said she did not do teaching work in the old role; however, she is qualified to teach as she holds a Certificate IV in Training and Assessment. Ms Tyler confirmed she had previous teaching experience as a full-time Educator with the Mater. Ms Tyler said the ratio of teaching to curriculum development was not clearly determined in the new role. Ms Tyler said in her old role she worked from home for two days of the week, and under the new role she would work from home one day of the week if possible. Ms Tyler said the requirement to be onsite could be at South Brisbane, but could be any of the other Education Hubs, and Mater would try to ensure they were on the Southside of Brisbane.

• [22] Mater said there may have been a requirement for her to teach the Certificate IV Allied Health Assistants course, and if that was required, she would need to be accredited with her governing body.

• [23] Mater submitted that the Act provides that an employer may apply to the Commission to vary the redundancy payment where the employer has found other acceptable employment. Mater submitted that case law of the Commission explains that other acceptable employment is something that should be assessed objectively. It does not mean that the role must be acceptable to the employee. Rather, it means that an employee's prima facie entitlement to a redundancy payment may be at risk if they refuse a role or position which is found to be objectively acceptable.[2]

• [24] Other acceptable employment does not mean that the employment must be identical, as no two jobs may be exactly the same. Similarly, alternative employment may be acceptable even where there may be some detrimental alteration to the terms and conditions of employment. It is for the employee to engage with the employer meaningfully and to not refuse alternative employment merely because they want to access the benefits of redundancy.

• [25] Mater referenced Deputy President Sams in DRW Investments t/as Wettenhalls v Timothy Richards & Others[3] (DRW Investments) where he considered the term "other acceptable employment" and said the following:

"[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:

• rate of pay;
• hours of work;
• work location;
• seniority;
• fringe benefits;
• workload;
• job security;
• continuity of service;
• accrual of benefits;
• probationary periods;
• carer's responsibilities; and
• family circumstances."

• [26] Mater also referred to the case of Spotless Services Australia t/as Alliance Catering[4] (Spotless Australia) which further considered the term 'acceptable employment' and Deputy President Sams said:

"[65] The above decisions have some common features, including:

• The test of what constitutes 'acceptable employment' is an objective one. It does not mean it must be acceptable to the employee.
• 'Acceptable employment' is not identical employment, as no two jobs could be exactly the same.
• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
• 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'.
• The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment 'acceptable' for all of them. Each employee's circumstances must be taken into account.
• There are a range of factors of varying weight, according to an employee's particular circumstances, which may be taken into account to assess the acceptability of alternative employment."

• [27] Mater submitted that with reference to the guidance provided by Deputy President Sams in DRW Investments, the following information relevant to the criteria set out:

1. Rate of pay: The other acceptable employment offered by Mater did not reduce Ms Tyler's hourly rate of pay (or any other monetary entitlement). Ms Tyler would enjoy the exact same rate of pay.

1. Hours of work: The other acceptable employment did not alter the employees' hours of work. The hours of work would be the same in the new role.

1. Work location: The other acceptable employment did not result in any change to Ms Tyler's work location.

i. Ms Tyler's primary place of work is Mater South Brisbane.

1. Seniority: The other acceptable employment did not result in any increase or decrease in seniority within the business.

1. Fringe Benefits: The other acceptable employment did not result in any change to the fringe benefits available to Ms Tyler.

1. Workload: The other acceptable employment did not result in any change to Ms Tyler's workload.

1. Job Security: Ms Tyler will remain as a permanent employee of the business.

1. Continuity of Service: Ms Tyler will maintain her continuity of service in her employment with Mater.

1. Probationary Periods: Mater will not apply any probationary periods to Ms Tyler's new employment.

1. Carer's responsibilities: Mater is not aware of any caring responsibilities that would render the new employment unacceptable.

1. Family circumstances: Mater is not aware of any family circumstances that would render the new employment unacceptable.

• [28] In reliance on the guidance provided by Deputy President Sams in Spotless Australia, Mater submitted that:

1. Ms Tyler's wages, conditions, and continuity of service remain unchanged. The alternative employment offered does not result in any reduction of entitlements or disadvantage to Ms Tyler.

1. The differences between Ms Tyler's previous role and the alternative position are minimal when considered objectively. While Ms Tyler was previously responsible for both curriculum design and implementation, the new role primarily involves curriculum delivery. The core duties remain aligned with Ms Tyler's skills, experience, and expertise.

1. Ms Tyler claims that the new position would prevent her from working flexibly in a way that supports her postgraduate studies. However, personal scheduling preferences do not constitute a valid reason to refuse reasonable alternative employment.

• [29] The Mater acknowledged Ms Tyler's concerns regarding flexible work arrangements but asserted that she did not have an approved Flexible Working Arrangement under s.65 of the Act. Ms Tyler was never contractually entitled to remote or flexible working conditions beyond what was operationally feasible and approved by the employer.

• [30] Ms Tyler has cited the requirement for onsite attendance during standard business hours as a key reason for rejecting the alternative role. However, working onsite during regular hours is a reasonable and common expectation in employment. It does not render the alternative employment unsuitable.

• [31] Mater notes that their employees may work remotely where operationally viable, in accordance with the Mater Remote Working policy. However, this policy does not create an automatic right for any employee or position to work remotely. Remote work is discretionary and must align with the operational and business needs of the organisation.

• [32] Mater submitted that the reasons provided by Ms Tyler for refusing the alternative employment should be given little weight by the Commission as:

1. The alternative role is objectively suitable, with no reduction in pay, entitlements, or job security.

1. Ms Tyler's preference for remote or flexible work arrangements is not a contractual right, nor does it constitute a legitimate basis for rejecting a comparable role.

1. The requirement for standard onsite attendance is neither unreasonable nor a substantial change to the nature of her work.

• [33] Mater submitted that Ms Tyler has not demonstrated that accepting the alternative role would cause undue hardship or any other outcome that would render the other employment unacceptable. Instead, her objections are based primarily on personal preferences rather than genuine employment-related disadvantages.

• [34] Mater also referred to a decision of Deputy President Lake where he considered an application to vary redundancy pay under comparable circumstances in Application by Mater.[5] In this case, the Deputy President determined that Mater was a significant driving force behind the creation of the new employment opportunity for the employee. Mater contends that this reasoning similarly applies to the other suitable employment offered to Ms Tyler in the present matter. Indeed, the roles evaluated by Deputy President Lake are identical to the positions within the Mater's business that are being considered in this matter.

• [35] It is apparent Ms Tyler had previous experience working in a teaching role for Mater. The Mater engaged in a consultation process prior to implementing changes within its Education and Training division. Ms Tyler's role was identified as being no longer required.

• [36] Following the consultation period, Mater arranged a meeting with Ms Tyler and offered Ms Tyler a new role on the same rate of pay and hours of work that would have preserved her continuity of employment. Ms Tyler rejected the offer. Based on the evidence, I am satisfied Ms Tyler was more than capable of performing the role.

• [37] Objectively assessed, I am satisfied that the alternative role that was offered to Ms Tyler was other acceptable employment within the meaning of s.120(1)(b) of the Act and it was employment Mater had obtained for Ms Tyler. The role had the same rate of pay, the same number of hours of work at 38 hours per week, to be performed at similar times. The role had the same level of seniority and provided job security and ongoing continuity. There was to be no probationary period.

• [38] The location would continue to be based at South Brisbane however would have involved working at other Mater Education Hubs from time to time. Ms Tyler was working from home two days per week under the old role and anticipated working from home one day per week under the new role where possible. There was no formal entitlement to the existing working from home arrangement under the old role and it was at the discretion of Mater.

• [39] The concerns Ms Tyler expressed as the basis for her rejecting the new role included a lack of sufficient clarity around the new role and what it would entail. On the evidence, I am satisfied that Mater had taken sufficient steps to set out the requirements and expectations of the new role, although there would have inevitably been a process of some bedding down of the new roles as part of the larger restructure as it was being implemented.

• [40] The concerns expressed by Ms Tyler about potentially having to travel to Education Hubs from time to time, having to potentially revisit the currency of her qualifications depending on what courses she may have been required to teach in the future, or about a reduction in the amount of time working from home, are not sufficiently significant to detract from the fact that the new role was objectively acceptable employment.

I am satisfied having weighed the evidence and submissions that having found the role offered was acceptable employment, it is appropriate to reduce the redundancy entitlement to zero in this case.

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

[3] [2016] FWC 461 [183].

[4] [2016] FWC 4505.

[5] [2025] FWC 964.

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