1. The Respondent, Mr James O'Halloran, is directed to file and serve a written response to the attached application to vary redundancy pay, including any witness statements/evidence in support, copying in the Applicant, by no later than 4:00pm (AEST) 14 November 2025. This can be done either using the Form F1 (found on the Commission's website) or by a written document (using Microsoft Word or PDF)"

• [7] The Respondent filed submissions five days late but provided an explanation that he had been admitted to hospital and provided appropriate medical documentation in support this. On that basis, I accept his material, albeit filed late.

• [8] The Respondent submitted that he primarily performed as a stunt work "Performer" in his substantive position and only occasionally filled in as an "Announcer", being the alternative position. In this regard, I note that the Respondent's employment contract states the Respondent was employed as a "Performer".[2]

• [9] The Respondent also submitted that both positions have significantly different skillsets, in respect to the nature of the role, his new responsibilities and risk involved. The Respondent also raised that when he filled in as an "Announcer", his shifts were intermittent.

• [10] The Respondent also made submissions about the lack of genuine consultation in the redundancy process and non-payment of termination payments. These are not issues that are within the scope of this matter and I have no power to deal with those issues.

• [11] It is well established that the question of whether the position offered was acceptable alternative employment must be "determined on an objective basis" and that "mere rejection of the alternative employment does not make employment objectively unacceptable."3

• [12] The Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd[3] considered what constitutes "acceptable alternative employment" and held:

"What constitutes 'acceptable alternative employment' is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification 'acceptable' is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of a like nature, the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others."[4]

• [13] As put by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia:[5]

"[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment."

• [14] In a similar vein, the Full Bench in Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd[6] found that the determination of whether alternative employment is acceptable will involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters including the location of the employment and travelling time.

• [15] In Sodexo Australia Pty Ltd T/A Sodexo,[7] Deputy President Sams considered various authorities in respect of the question of what constitutes "other acceptable employment" and helpfully summarised the principles in the following terms:

"• 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 individual 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."[8]

• [16] I note that the relevant award10 does not differentiate a person performing stunts or duties as an Announcer but rather contains a broader classification of "specialised performers"11 that encompasses both roles.

• [17] Having considered all the relevant factors objectively, I am satisfied and find that the Applicant had obtained other acceptable employment for the Respondent within the meaning of s.120(1)(b)(i).

• [18] I accept that the position as "Announcer" based at the 'Sea World' site was objectively an offer of acceptable alternative employment, in that:

1. the role of "Performer" was within the same classification under the relevant Award;
2. the hourly rate of pay was identical;
3. the hours of work for the role offered remained full time;
4. the site at which the Respondent was offered employment required some 19 km further travel, which would have been a reasonable distance to travel to work; and
5. the Respondent would have maintained his continuity of employment.

• [19] Having considered that section 120 of the Act is applicable, I must consider whether it is appropriate to reduce the amount of the redundancy payment payable to the Respondent. As outlined earlier, this is a matter of discretion which is to be exercised having regard to all of the relevant circumstances of the particular matter.

• [20] In this case, I do not consider there should be any adjustment as there were no circumstances that would warrant any adjustment to the redundancy payment.

• [21] In all of the circumstances, I am satisfied that it is appropriate to exercise power to reduce the redundancy amount to an amount of $0.00. An Order[9] to that effect is issued in conjunction with this decision.

[3] Australian Chamber of Manufacturers v Derole Nominees Pty Ltd (1990) 140 IR 128.

[5] PR974699.

[6] (1988) 27 IR 226.

[7] [2016] FWC 4012.

[9] PR794370.

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