Fair Work Act 2009

s.120 - Redundancy pay

Application for variation of redundancy pay - other acceptable employment not obtained - application dismissed.

• [1] Pohj Pty Ltd (Pohj) has made an application under s.120(2) of the Fair Work Act 2009 (Cth) (FW Act) seeking that the Fair Work Commission (Commission) vary the redundancy pay entitlement that Mr Hari Prasad Kharal (Respondent) is entitled to be paid under s.119 from $3,795.44 to nil.

• [2] Section 120 of the FW Act confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee is entitled under s.119 of the FW Act if the employer obtains other acceptable employment for the employee or cannot pay the amount.

• [3] Pohj contends that it has obtained other acceptable employment for the Respondent.

• [4] The matter was heard together with three other related applications[1] by Microsoft Teams Video on 4 July 2025. Pohj was represented by Mr Steve Gooley, the general manager of the Bachrach Naumburger Group, the parent entity of Pohj. There was no appearance by, or on behalf of, the Respondent.

• [5] For the reasons that follow, I am not satisfied that Pohj has obtained other acceptable employment for the Respondent.

• [6] The parties were given the opportunity to file materials in support of, or in opposition to, the application ahead of the hearing. Pohj filed some limited documentation and a one-page submission in support of its application. The Respondent did not file any materials in response to the application.

• [7] The following documents were admitted into evidence:

• Letter titled "Notice of intention to cease your employment by reason of redundancy" dated 27 May 2025 (Exhibit 1);
• Minutes of meeting of Orana Mall Cleaning Staff held on 3 June 2025 (Exhibit 2);
• Attendance/Sign-in Sheet for meeting of Orana Mall Cleaning Staff held on 3 June 2025 (Exhibit 3); and
• Letter titled "Termination of employment by reason of redundancy" dated 17 June 2025 (Exhibit 4).

• [8] The material before the Commission is scant. The following background is derived from the documentary material filed by Pohj and submissions advanced by Mr Gooley during the hearing.

• [9] Pohj is an associated entity of Comet (Aust) Pty Ltd (Comet). Comet owns and operates the Orana Shopping Mall located in Dubbo, New South Wales. It is part of the Bachrach Naumburger Group. The Respondent is a cleaner at the Orana Shopping Mall.

• [10] Prior to November 2023, Comet engaged a contractor to provide cleaning services at the Orana Shopping Mall. In or around November 2023, the contractor terminated that arrangement. At that time Comet was unable secure a new contractor. Persons associated with Comet and/or the Bachrach Naumburger Group established Pohj to provide cleaning services at the Orana Shopping Mall on an interim basis until a new contractor could be engaged.

• [11] On 28 November 2023, Pohj employed the employees that had been previously employed by the contractor, including the Respondent.

• [12] On 27 May 2025, Pohj gave its employees, including the Respondent, notice of intention to cease employment by reason of redundancy. The notice relevantly stated:

A decision has been made for the cleaning services contract to change providers as of 1st July 2025. As a result of the movement from internal management of the Orana Mall cleaning services to a contractor, your employment with POHJ will no longer be required. Regrettably this means your employment will terminate. This decision is not a reflection on your performance, but of the operational needs of the company.

The employer is in discussions with the new contractor to facilitate an opportunity for your employment in a similar position working for the new contractor. We anticipate that this will provide a seamless transition of your employment and reduce any uneasiness relating to the change.

A meeting for all existing POHJ cleaning staff with Orana Mall and Head Office management has been organised to confirm further details of this change and anticipated outcomes. We encourage you to attend this meeting in the Orana Mall Conference room at 9:30am on Tuesday 3rd June 2025.

• [13] The new contractor is Advent Facilities Management (Advent). Mr Gooley stated that the parties to the contract for the provision of cleaning services at Orana Shopping Mall from 1 July 2025 are Comet and Advent. The contract was not tendered into evidence. However, Mr Gooley stated that it was a term of the contract that Advent was required to conduct interviews with the employees and provide them with an opportunity to be employed. However, Mr Gooley also stated that if Advent did not offer employment to the employees of Pohj, they would be made redundant.

• [14] On 3 June 2025, Pohj met with its employees and advised:

• That a representative of Advent will be onsite to meet employees on 4 June 2025;
• That employees should update their resume and bring a copy to the meeting. The employees were advised to include their period of employment with Pohj in their resume and any skills or training acquired during that time; and
• That Advent will more than likely offer the same positions and hours, but that will be a matter for Advent.

• [15] On 4 June 2025, Pohj's employees met with a representative of Advent.

• [16] On 17 June 2025, Pohj wrote to the Respondent to advise that his employment will cease on 1 July 2025 due to a change of cleaning service providers from Pohj to Advent. That correspondence also stated:

As previously discussed, we have facilitated opportunities for your ongoing employment at Orana Mall with Advent Facilities Management. As a result of the envisaged changeover, we have applied for the reduction of your redundancy payment, otherwise calculated as 4 weeks, to be reduced to $0.00.

• [17] On 1 July 2025, Advent employed the Respondent and Advent commenced providing cleaning services at Orana Shopping Mall.

• [18] Beyond Mr Gooley stating that the Respondent was employed "under the award" with Pohj and is employed "under the award" with Advent, there is no evidence as to Respondent's classification or terms and conditions of employment with Pohj or Advent.

• [19] Section 119 of the FW Act provides as follows:

(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:

Employee's period of continuous service with the employer on termination

(3) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

• [20] Section 120 of the FW Act provides as follows:

(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.

• [21] As stated above, s.120 of the FW Act confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the FW Act. The discretion is only exercisable if the preconditions in s.120(1) are satisfied.

• [22] The preconditions in s.120(1) require the Commission to be satisfied that an employee the subject of the application has an entitlement to redundancy pay because of s.119 and that the employer has either obtained acceptable employment for the employee or cannot pay the redundancy pay to which the employee is entitled under s.119.[2]

• [23] There is no dispute, and I am satisfied, that the Respondent is entitled to be paid an amount of redundancy pay by Pohj because of s.119. The issue is whether Pohj has obtained other acceptable employment.

• [24] In FBIS, the Full Court identified that an employer obtains other acceptable employment when it acquires or gets the employment by its conscious, intended acts.[3]

• [25] Having regard to the circumstances of this matter, I am not satisfied that Pohj obtained other acceptable employment for the Respondent. There is no evidence that Pohj took any action to obtain employment for the Respondent. Even if I was to accept that Pohj took action to influence the contractual arrangements between Comet and Advent, then as explained by Mr Gooley, those arrangements go no further than requiring Advent to interview the employees, including the Respondent. Ultimately, it was a matter for Advent as to whether it offered employment to the Respondent and if so, the terms and conditions of that employment. So much was communicated to the employees in the meeting on 3 June 2025.

• [26] At their highest, the actions of Pohj and Comet have facilitated the potential for the Respondent to have secured employment with Advent. However, that falls short of obtaining an offer of employment from Advent that the Respondent could accept or decline.

• [27] As I am not satisfied that Pohj obtained other acceptable employment for the Respondent, there is no basis for me to reduce the redundancy pay which the Respondent is entitled to under s.119 of the FW Act.

• [28] Accordingly, the application is dismissed.

• [29] It follows that Pohj must pay Mr Kharal the redundancy pay that he is entitled to be paid under s.119 of the FW Act.

[1] C2025/5232, C2025/5335, and C2025/5339.

[2] FBIS International Protective Services (Aust) Pty Ltd v Marine Union of Australia [2015] FCAFC 90 (FBIS) at [21]; Australian Commercial Catering Pty Ltd v Powell and Togia; Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [35]- [38]; Ready Workforce (A Division of Chandler Macleod) Pty Ltd t/a Chandler MacLeod v Andrew Lowe, Bernard McIntyre, David Lindsay, Glenn Munro, James Eason, Johnathon Barbara, Mark Keller, Robert Snelgrove, Scott Ditchfield, Scott McFarlane, Timothy Farrow [2022] FWCFB 173 at [22]- [23].

Printed by authority of the Commonwealth Government Printer