s.120 - Application to vary redundancy pay for other employment or incapacity to pay

[1] SRG Global Integrated Services Pty Ltd (SRG) has applied to the Fair Work Commission (FWC) for an order pursuant to section 120 of the Fair Work Act 2009 (Cth) (FW Act) to vary the amount of redundancy pay to be paid to Mr Adam Booth (Mr Booth).

[2] SRG have sought an order that the amount of redundancy pay be reduced from seven (7) weeks of Mr Booth's base rate of pay for his ordinary hours of work to zero (Order) on the grounds that SRG have found other acceptable employment for Mr Booth (Application).

[3] On 26 November 2025, the FWC directed Mr Booth to advise whether he opposed the granting of the Order sought in the Application by 4 December 2025. On 1 December 2025 Mr Booth advised that he objected to the FWC making the Order.

[4] In light of Mr Booth's objection to Order sought in the Application directions were issued on 3 December 2025 for the filing of materials to enable the Application to be determined (Directions).

[5] Mr Booth filed detailed submissions and evidence in support of his objection. The materials filed by SRG were at best incomplete and potentially misleading.

[6] The parties jointly prepared and filed a statement of agreed facts and digital court book containing the evidence and submissions of the parties (DCB).

[7] On 24 December 2025 the parties were asked to advise Chambers by 30 December 2025 if they wanted to be heard orally. Neither party contacted Chambers seeking to be heard orally in relation to the Application.

[8] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

• [9] According to the Statement of Agreed Facts filed by the parties Mr Booth commenced his employment with SRG on 16 September 2022 as a full time Rope Access Technician Level 1.[1] At the time his position was made redundant Mr Booth had progressed to a Rope Access Technician Level 3 and was working on a seven days on twenty one days off job share roster.[2]

• [10] SRG filed an unsigned copy of Mr Booth's contract of employment dated 16 September 2022 in which he was employed as a Rope Access Technician Level 1 at South32 on a four day on three day off roster (South32 Contract).[3] SRG did not file a copy of the variation to his contract dated 23 June 2025 which altered his employment arrangements and rate of pay to accommodate his job share roster.

[11] SRG say that at the time Mr Booth was made redundant he was covered by the SRG Global Integrated Services Pty Ltd (South32) Enterprise Agreement 2023 (South32 Agreement).

• [12] SRG say that towards the end of August 2025, SRG's General Manager - South West, Mr Mark Cowle, met with Mr Booth and other affected employees to inform them that the access maintenance work was ceasing at South32 and to advise them that SRG was looking for redeployment opportunities for each employee.[4] Mr Booth says that he did not attend that meeting.[5]

• [13] SRG say this information was confirmed in writing on 27 August 2025.[6] Mr Booth denies receiving this correspondence.[7]

• [14] On 24 September 2025, SRG offered Mr Booth a contract for alternative employment at various Alcoa sites (Alcoa Offer).[8] According to the Alcoa Offer employment in this role would be covered by the SRG Global Integrated Industrial Services and Multi-Disciplinary Enterprise Agreement 2023 (Alcoa Agreement).

• [15] The key conditions of employment for the Alcoa Offer are:[9]

[16] The offered role was two levels below Mr Booth's existing classification.

• [17] On 1 October 2025, Mr Booth emailed SRG and advised that he was declining the offer for the following reasons:[10]

"The conditions of offer, including the roster arrangement and pay rate differ significantly from the terms of my previous contract at Worsley."

[18] Mr Booth ceased employment with SRG on 4 October 2025.

"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."

(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

[21] Clause 29 of the South32 Agreement notes that redundancy pay for employees covered by the South32 Agreement will be as provided in the FW Act. I am therefore satisfied that Mr Booth is entitled to redundancy because of section 119 of the FW Act.

[22] I am also satisfied that SRG have standing to bring the Application as Mr Booth's employer.

[23] SRG submits that it obtained other acceptable employment for Mr Booth within the contemplation of section 120(1)(b)(i) of the FW Act.

• [24] In order to satisfy the requirement to 'obtain' other acceptable employment the employer must have caused the alternative employment to become available to the redundant employee.[11] This requires the employer to have procured an offer of employment whether or not it is accepted by the employee.[12] This does not require the employer to be a strong "moving force" in obtaining the offer of employment rather the offer of employment need only be the result of the "conscious intended acts" of the employer.

[25] Based on the evidence before me I am satisfied that SRG have 'obtained' alternative employment for Mr Booth.

[26] SRG submit that it has obtained 'acceptable' employment for Mr Booth within the contemplation of section 120(1)(b)(i) of the FW Act.

• [27] The principles to be applied in determining whether the alternative employment obtained by SRG constitutes 'other acceptable employment' for the purposes of section 120 of the FW Act include:[13]

• a. The determination of what constitutes other acceptable alternative employment is an objective exercise.[14]
• b. The mere rejection by the employee of alternative employment does not make it objectively unacceptable.[15] 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.[16]
• c. Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[17]
• d. There are a range of matters of varying weight, according to an employee's particular circumstances, which may be taken into account to assess the acceptability of alternative employment.[18] The matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as rate of pay, hours of work, seniority, fringe benefits, workload, job security, work location and travel time, continuity of service and accrual of benefits, carer's responsibilities and family circumstances and the application of probationary periods.[19] This list is not exhaustive. There may be other relevant factors.[20]
• e. To be acceptable, the new employment would need to take account of the employees' skills, seniority, experience and capacity to perform the job.[21]
• f. To be 'acceptable employment' the employment need not be identical employment and may still be considered acceptable, notwithstanding there might be additional inconvenience or a detrimental alteration to the terms and conditions of employment.[22]

• [28] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer.[23]

[29] SRG filed an unsigned copy of Mr Booth's contract of employment dated 16 September 2022 in which he was employed as a Rope Access Technician Level 1 at South32. SRG did not file a copy of the variation to his contract dated 23 June 2025 which altered his employment arrangements and rate of pay to accommodate his job share roster. SRGs written submissions addressed only the travel time to Alcoa Wagerup notwithstanding that the Alcoa Offer contemplated Mr Booth working at Kwinana or Pinjarra. I am therefore not satisfied that SRG have discharged its onus of establishing that the alternative employment in question was objectively acceptable.

[30] SRG submit that the Alcoa Offer constituted acceptable alternative employment because:

1. The roles were the same.
2. SRG is engaged in an industry in which it is required to perform specific scopes of work for fixed periods of time and the requirement for employees to change location and conditions of employment is reflected in the terms of their engagement.
3. The additional travel time between Mr Henderson's home and Alcoa Wagerup is only 16 minutes each way.

• [31] SRG also submit that "... the role did offer different benefits to the Respondent and arguably changes in conditions were not, for the most part, detrimental to the Respondent" however they do not identify what those might be.[24]

[32] SRG concede that the renumeration in the Alcoa offer was less.

• [33] Mr Booth submits that the employment offered is not acceptable. The test of what constitutes 'acceptable' employment is an objective one. It does not mean it must be acceptable to the employee.[25]

• [34] Acceptable employment' is not identical employment, as no two jobs could be exactly the same.[26]

• [35] The FWC is required to have regard to the totality of the circumstances. No one factor will be determinative for the purposes of the discretionary judgement as to whether or not the alternative employment is acceptable.[27]

• [36] As was explained by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia at [89]:[28]

"...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."

[37] Mr Booth is the father of two young children and the sole income earner for his family. SRG proposed to recognise Mr Booth's prior service. SRG say that the offers for alternative employment were for the same role. However the Alcoa Offer filed by SRG was for a role two levels lower than Mr Booth's existing level and provided for a much lower rate of remuneration.

• [38] The Alcoa Offer contemplates Mr Booth working at any one of three different Alcoa sites, although SRG only made detailed submissions with respect to the travel time to closer of those sites. Mr Booth's evidence is that the commute to the other two locations would have added an additional 24-58 minutes to his existing daily commute time of 76 minutes. The increase in travel time and travel distance to any of those three sites is significant not only because of the increase in distance and duration for each journey but because Mr Booth would be required to make the journey many more times each year than he would have if he remained on the roster he was performing at South32.[29]

[39] Most significantly the Alcoa Offer proposed a roster of 10 hour days five days per week in contrast to Mr Booth's existing job share roster of 12 hour days for seven days and then 21 days off.

[40] Notwithstanding any purported contractual right to vary roster patterns and work location the change in roster associated with either offer would significantly adversely impact on Mr Booth's personal circumstances.

[41] In failing to file a copy of Mr Booth's most recent employment contract arrangements and selectively making submissions with respect to travel time and distance I am not satisfied that SRG have discharged its onus to establish the alternative employment offered was objectively acceptable.

[42] In all of the circumstances I am also not satisfied that the positions offered to Mr Booth constituted 'acceptable employment' for the purposes of section 120 of the FW Act.

• [44] An order[30] to this effect will issue with this decision.

[1] Digital Court Book (DCB) 2, I note that in the Form F45A - Application to vary redundancy pay the Respondent indicated that Mr Booth's start date was 4 October 2021.

[11] P&R Electrical Wholesalers Pty Ltd [2016] FWC 1730 at [26]- [27].

[12] FBIS International Protective Services (Aust) Pty Ltd v MUA and Fair Work Commission [2015] FCAFC 90 at [18].

[13] Application by Spotless Services Australia Limited [2013] FWC 4484 at [14].

[14] Australian Chamber of Manufactures v Derole Nominees Pty Ltd [1990] AIRC 980; (1990) 140 IR 123 (Australian Chamber); Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia, 21 November 2006 [PR974699] (Feltex).

[15] Vicstaff Pty Ltd (t/as Stratco) v May [2010] FWA 3141; (2010) 204 IR 233 at [29].

[16] Spotless Services Australia Limited t/as Alliance Catering [2016] FWC 4505 (Spotless) at [65].

[19] Australian Chamber (n 14); Feltex (n 14).

[20] DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461 at [183].

[22] Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327 (Datacom) at [9]; Feltex (n 14) at [89].

[23] NUW v Tontine Fibres [2007] AIRCFB 1016 at [24].

[26] Datacom (n 22) at [9] Feltex (n 14)at [89].

[27] Datamars (Australia) Pty Ltd T/A Datamars [2015] FWC 1269 at [28].

[30] PR796107.

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