s.120 - Redundancy pay

Application to reduce redundancy pay - whether other acceptable employment - nature of work substantially different - application dismissed

• [1] Gary Bagley commenced employment with Redpath Contract Services Pty Ltd (Redpath) on 5 August 2024.[1] Mr Bagley was employed by Redpath as a Bogger/LHD Operator G3 at Rosebery Mine. Mr Bagley was advised in writing on 22 September 2025 that Redpath had lost the contract to perform work at the Rosebery Mine and that redeployment opportunities for Mr Bagley would be explored. Mr Bagley was offered the role of Jumbo Operator G6 at the Renison Mine on 25 September 2025. Mr Bagley declined this offer on 1 October 2025. No other redeployment options were identified and Mr Bagley's employment with Redpath ended by reason of redundancy on 14 October 2025. Redpath has applied pursuant to s.120 of the Fair Work Act 2009 (FW Act) to reduce Mr Bagley's redundancy entitlement of four weeks to zero on the basis that Redpath obtained other acceptable employment for Mr Bagley. This decision concerns whether Mr Bagley's redundancy entitlement of four weeks should be reduced.

• [2] Redpath filed a Form F45A application on 22 October 2025 which was signed by Thomas Howard. The application form contains factual statements about Mr Bagley's role at the Rosebery Mine and about the role offered to Mr Bagley at the Renison Mine. The following documents were attached to the application:

• Mr Bagley's contract of employment with Redpath for the Bogger/LHD Operator G3 role which was signed by Mr Bagley on 21 August 2025.

• A consultation letter dated 22 September 2025 which puts Mr Bagley on notice that Redpath has lost the contract to perform work at the Rosebery Mine.

• An offer from Redpath to Mr Bagley dated 25 September 2025 for the position of Jumbo Operator G6 at the Renison Mine.

• A document which confirms Mr Bagley declined the offer of a Jumbo Operator G6 at the Renison Mine on 1 October 2025. The reason identified by Mr Bagley on the relevant electronic form was "Personal reasons/moving house."

• Mr Bagley's termination letter dated 9 October 2025.

• [3] After Mr Bagley confirmed during a Mention/Directions proceeding on 3 November 2025 that he opposed Redpath's application, I issued directions for the filing of material and listed a hearing for 20 November 2025.

• [4] Mr Bagley filed an email dated 6 November 2025 in opposition to Redpath's application. Mr Bagley's email contains reasonably detailed evidence about why he rejected Redpath's offer for the Jumbo Operator G6 role at Renison Mine. Mr Bagley's email refers to spending 90% of his time operating plant in his role at the Rosebery Mine and to being advised that this would reduce to around 10% in the position at the Renison Mine. Mr Bagley indicated he would be required to spend 90% of his time performing service crew and nipper duties at the Renison Mine due to the machinery operated at that mine and the composition of the existing workforce.

• [5] Redpath was directed to file any material in response to Mr Bagley's evidence and submissions by 5pm on 14 November 2025. Redpath did not file any material.

• [6] Mr Bagley confirmed the accuracy of the evidence in his email dated 6 November 2025 under an affirmation during the hearing on 20 November 2025. Mr Bagley also answered some questions from me. Mr Bagley gave evidence that he did not appreciate the significance of recording "Personal reasons/moving house" in the electronic form when he declined Redpath's offer to work at the Renison Mine on 1 October 2025. Mr Bagley confirmed that the primary reason he declined Redpath's offer was what he recorded in his email dated 6 November 2025. Specifically, Mr Bagley confirmed he wishes to continue performing plant operator work as a career and did not wish to accept a position whereby he had been told by a Manager from the Renison Mine that he would only be operating plant for around 10% of his working time. Mr Bagley stated he was considering moving house but did not confirm his decision on that issue until he realised the role offered at the Renison Mine would not be suitable.

• [7] Redpath did not wish to cross-examine Mr Bagley on his evidence during the hearing on 20 November 2025.

• [8] Whether an employer has obtained other acceptable employment for an employee within the meaning of s.120(1)(b)(i) of the FW Act must be determined objectively.[2] That means the fact that Mr Bagley subjectively considered that the role at Renison Mine was not acceptable is not relevant. Similarly, the fact that other employees may have subjectively considered the other employment to be acceptable is not relevant. Factors that are relevant to the objective assessment can include:

• The work being of a like nature.
• 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.

• [9] There are factors that indicate the Jumbo Operator G6 role at Renison Mine was other acceptable employment that Redpath obtained for Mr Bagley. These factors include that the other role involved a higher rate of pay, similar shift patterns, and a similar amount of travel from Mr Bagley's residence.

• [10] However, Mr Bagley has ultimately provided uncontested evidence that in the role at Rosebery Mine he was "either on the jumbo or the loader 90% of the time, and service crew/nipper 10% not the other way around." Mr Bagley stated the following about the position at the Renison Mine based on what he had been told by a Manager from the Renison Mine:

"My offer of employment for Renison as a jumbo operator is not a full time jumbo job, it's a fill in position only when a full time operator has a day off. With no loader and no second jumbo drill to cover leaves me doing service crew and/or nipper duties 90% of the time which is not the same as the previous contract in my opinion and is not the direction I want my career to go in. Even tho (sic) I stay fit at 47, most of the employees doing service crew and nipper duties full time are half my age..."

• [11] Mr Bagley's evidence is not consistent with the information contained in the Form F45A filed by Redpath. However, despite being on notice that Mr Bagley was contesting the evidence seemingly from Mr Howard in the Form F45A, Redpath did not provide any evidence in response to Mr Bagley's evidence about the differences between the two positions. That being the case, I prefer Mr Bagley's evidence which was confirmed under an affirmation and was not challenged in cross-examination.

• [12] Although I accept that Redpath "obtained" the alternative position of Jumbo Operator G6 at the Renison Mine for Mr Bagley, I do not accept this was an offer of "other acceptable employment" based on an objective assessment of the two roles. I consider Mr Bagley's evidence, which was based on what he had been told about the other role by a Manager from the Renison Mine, establishes that the nature of the two roles was extremely different. There is clearly a substantial difference between a role that involves an employee driving plant for 90% of the time and then performing support duties for 10% of the time, and a role that only involves driving plant for 10% of the time. It is conceivable that the evidence provided to Mr Bagley from the Manager was not entirely accurate or perhaps only represented what the role would initially look like while further equipment was being purchased. However, Redpath had the opportunity to lead further evidence about the Renison Mine role and ultimately chose not to challenge Mr Bagley's evidence.

• [13] I find that Redpath did not obtain other acceptable employment for Mr Bagley. That finding means the discretion to reduce Mr Bagley's redundancy entitlements under s.120(2) of the FW Act is not enlivened.

• [14] Even if I had concluded that the offer of the Jumbo Operator G6 role at Renison Mine did constitute other acceptable employment, I would not have exercised my discretion to reduce Mr Bagley's redundancy entitlements. Mr Bagley is only entitled to four weeks of redundancy pay and there are clearly significant differences between his previous role and the other role offered by Redpath. It also appears that the application has largely only arisen because of a breakdown of communication between Mr Bagley and Redpath about why Mr Bagley declined the offer of employment. Although I do accept Mr Bagley is at least partially responsible for that breakdown in communication given the reason he identified for declining the offer on 1 October 2025.

Ms K McWatt and Ms K Van Der Merwe representing Redpath.

[1] Mr Bagley was employed by RUC Cementation Mining Contractors Pty Ltd (RUC) from 5 August 2024 until his employment was transferred to Redpath on 12 August 2025. Redpath recognised Mr Bagley's prior service with RUC.

[2] Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226.

[3] Spotless Services Australia Limited [2016] FWC 4505.

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