Fair Work Act 2009

s.120 - Redundancy pay

Variation of redundancy pay for other employment or incapacity to pay - application dismissed.

[1] O2 Supermarkets Cranbourne Pty Ltd has made an application pursuant to s 120(2) of the Fair Work Act 2009 (Cth) (Act) to have the Commission reduce to nil the redundancy entitlement of Ms Hine-Teaorangi Eugenia Price. The applicant contends that it obtained other acceptable employment for Ms Price. It also says that it is incapable of paying Ms Price her redundancy pay. Ms Price opposes the application.

[2] The hearing of this matter has been the subject of some delay. A hearing on 20 October 2025 was adjourned because the applicant failed to comply with Directions issued by my Chambers to file any evidence and submissions in support of its case. On 16 October 2025, the applicant sought an extension to the Directions and a revised hearing date. Amended Directions were issued and the matter was relisted to proceed on 20 November 2025. On the day prior to the hearing, Ms Price advised that she was working and would be unable to attend. In the circumstances, I caused correspondence to be sent to the parties in which it was proposed that in the absence of any objection, the matter would proceed to be determined on the papers. Ms Price confirmed her preference that the application proceed this way. There was no response from the applicant. On 2 December 2025, in the absence of a response, the parties were advised that the matter would be determined on the papers, noting the absence of any objection by the applicant to this course.

• [3] Section 120 of the Act provides that if an employee is entitled to be paid an amount of redundancy pay under s 119, and the employer "obtains other acceptable employment for the employee," or "cannot pay the amount," the employer may apply to the Commission to reduce the amount of redundancy pay to a specified amount, which can be nil. In this case, I am satisfied that Ms Price has an entitlement to redundancy pay "because of" s 119 of the Act.[1] There is no dispute that at all relevant times, the General Retail Industry Award 2020 (Award) applied to Ms Price in her employment.[2] Clause 38 of the Award makes it clear that redundancy pay is provided for in the National Employment Standards and refers to ss 119 to 123 of the Act.

• [4] Ms Price was employed by the applicant for a period of two years and one month, before the termination of her employment by reason of redundancy.[3] It is not in dispute that Ms Price is entitled to six weeks redundancy pay.[4]

[5] At the outset, I record that there is no financial or other information before the Commission to support the contention that the applicant "cannot pay the amount" for the purposes of s 120(a)(b)(ii) of the Act. The unsupported contention in the Form F45A application that the applicant's business operated at a loss does not establish an incapacity to pay the redundancy amount owing to Ms Price. Because I am not persuaded that the applicant cannot pay the amount, there is no basis for me to reduce it under s 120(1)(b)(ii).

• [6] I turn now to consider whether the applicant obtained other acceptable employment for Ms Price (s 120(1)(b)(i)). If so, the Commission may determine under s 120(2) of the Act whether Ms Price's entitlement to redundancy pay should be reduced and, if so, the amount of any such reduction.[5]

[7] The applicant relies upon a statement of Ryan Ouyang, who says that he "highly" recommended Ms Price "to the new owner to service the store." Mr Ouyang's role with the applicant company is not specified in the material before the Commission. In its Form F45A application, the applicant submits that Ms Price commenced employment with the new store owners immediately from the change of hand of the business in the "same part-time role." The applicant also relies upon the statement of Hemant Mittal, the director of Clarinda Village Supermarket Pty Ltd and the new owner of the store. Mr Mittal stated that Ms Price was employed by it effective from 11 May 2025 and continues to perform work as its employee.

• [8] In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia,[6] a Full Court of the Federal Court considered the meaning of the word obtains in the context of s 120(1)(b)(i) of the Act. The Court stated that "to obtain employment for an individual means to procure another employer to make an offer of employment, which the individual may or may not accept as a matter of his or her choice."[7] In that case, the employer had only established contact between the relevant employees and the new employer, such that the employees were able to participate in a recruitment process. While many employees did in fact obtain employment with the new employer, the Court found that this employment had not been obtained for them.

• [9] In the present case, Mr Ouyang's statement is limited to advising that he highly recommended Ms Price for a role with the new owner. There is no other information which allows me to reach a state of satisfaction that Mr Ouyang's "conscious, intended acts"[8] were attributable to the applicant, and that those actions led to Ms Price being offered the role prior to the end of her employment relationship with the applicant.[9] However, even if I am wrong in that conclusion, I would not be satisfied that such employment constitutes acceptable alternative employment in any event.

• [10] It is well-settled that the question of whether other employment is acceptable is to be approached objectively, involving a consideration of a range of matters including terms and conditions of employment including pay and duties.[10]

• [11] The evidence before the Commission comprises of Ms Price's payslip with the applicant for the period 21 October to 27 October 2024, and a payslip for the period 19 May to 25 May 2025 with her new employer. The payslips, taken together with Ms Price's uncontested submissions,[11] demonstrate as follows:

(1) During Ms Price's employment with the applicant, she was paid as a retail employee level 4. Her pre-1 July 2025 rate of pay was $27.17 per hour and she performed store manager duties.

(2) In Ms Price's employment with her new employer, her pre-1 July 2025 rate of pay was $25.65 per hour, being the rate applicable to a retail employee level 1.

• [12] Ms Price submits that she is entitled to be paid her redundancy entitlement by the applicant as her new role is not an acceptable alternative. She contends that the duties are not the same as the store manager role she held, and the pay is significantly decreased. Having regard to all of the circumstances before the Commission,[12] I am not satisfied that the alternative employment was acceptable for Ms Price, noting that she now holds an entry level role in lieu of a store manager position at level 4 rates of pay.

[13] I have found that the applicant did not obtain acceptable alternative employment for Ms Price. Nor has the applicant demonstrated that it cannot pay the redundancy amount owing to Ms Price. Accordingly, the jurisdictional prerequisites for the making of an order under s 120(2) are not made out.

[14] The application is dismissed. Ms Price's redundancy entitlement is to be paid by the applicant without delay.

[1] See, Maritime Union of Australia, The v FBIS International Protective Services (Aust) Pty Ltd [2014] FWCFB 6737 at [23]- [33]

[3] Form F45A application at [1.1] and [1.3]

[4] There is no material before the Commission demonstrating that any of the matters the subject of ss 121-123 of the Fair Work Act 2009 (Cth) arise in this application, nor did the applicant contend as such

[5] Ready Workforce (A Division of Chandler Macleod) Pty Ltd t/a Chandler Macleod v Andrew Lowe and Ors [2022] FWCFB 173 at [23]; Australian Commercial Catering Pty Ltd v Powell & Togia [2016] FWCFB 5467 at [35]

[6] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90; 232 FCR 1; 250 IR 476

[9] Electricity Wizard Pty Ltd v Tauiliili [2018] FWC 4556 at [24]

[10] Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226 at 230-231; Re Target Retail Agreement 2001 PR916204 at [6]

[11] Respondent's submissions dated 29 September 2025

[12] Re National Union of Workers (2007) 168 IR 143 at [24]

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