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 Andrew Manning (Mr Manning).

[2] SRG have sought an order that the amount of redundancy pay be reduced from four (4) weeks of Mr Manning'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 Manning (Application).

[3] On 26 November 2025, the FWC directed Mr Manning to advise whether he opposed the granting of the Order sought in the Application by 4 December 2025. On 28 November 2025 Mr Manning advised that he objected to the FWC making the Order.

[4] In light of Mr Manning'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). Mr Manning filed submissions and evidence in support of his objection. The materials filed by SRG were at best incomplete and potentially misleading.

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

[6] 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.

[7] 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.

• [8] According to the Statement of Agreed Facts filed by the parties Mr Manning commenced his employment with SRG on 3 June 2022 as a casual Rope Access Technician Level 1.[1] I note that in the Form F45A - Application to vary redundancy pay the Respondent variously identified Mr Manning's start date as 23 June 2023, 5 June 2023 and November 2023. Mr Manning's offer of employment dated 20 October 2023 records his 'original hire date' as 23 May 2023.[2] At the time of the termination of his employment he was employed by SRG on a full time basis as a Rope Access Technician Level 3.[3]

• [9] SRG filed an unsigned copy of Mr Manning's casual contract dated 2 June 2023 [4]but not a copy of any of his subsequent contracts of employment. Mr Manning filed a copy of his contract of employment dated 20 October 2023 for full time employment as a Rope Access Level 3.[5] He also filed a copy of his subsequent contract of employment dated 10 July 2024 for full time employment as a Rope Access Level 3 at South32 (South32 Contract).[6]

• [10] Mr Manning explained that when he was offered the position at South32 that he told SRG he objected to the clause in the South32 Contract which stated:[7]

"The location of employment outlined in the contract may be varied by the Company on a permanent or temporary basis from time to time in line with operational requirements."

• [11] He says he was instructed by SRG that the clause would be void if he crossed out the clause in the contract, initialled the change and returned the signed contract to SRG. Mr Manning tendered a copy of the amended and initialled contract. [8] SRG have not contested his evidence in this regard.

• [12] The South32 Contract contains the following key terms:[9]

[13] The South32 Contract also states that Mr Manning's terms and conditions of employment would be governed by the SRG Global Integrated Services Pty Ltd (South32) Enterprise Agreement 2023 (South 32 Agreement).

• [14] Towards the end of August 2025, SRG's General Manager - South West, Mr Mark Cowle, met with Mr Manning 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.[10]

• [15] This information was confirmed in writing on 27 August 2025.[11]

• [16] On 25 September 2025, SRG offered Mr Manning a contract for alternative employment at various Alcoa sites (Alcoa Offer).[12]

• [17] The key conditions of employment for the Alcoa Offer are:[13]

• [18] On 30 September 2025, Mr Manning emailed SRG and advised that he was declining the offer for the following reasons:[14]

• [19] On 30 September 2025 SRG wrote to Mr Manning confirming that in the absence of him accepting the alternative employment his employment with SRG would be terminated effective 21 October 2025. In the same correspondence SRG indicated that it would apply to the FWC for orders to reduce the amount of severance pay payable to him on the grounds that it had obtained suitable alternative employment.[15]

• [20] The same day SRG also offered Mr Manning another role in the North West of Western Australia (NW Offer). The key conditions of the NW Offer are as follows:[16]

• [21] On 30 September 2025 Mr Manning asked SRG to waive the notice period. SRG replied the same day agreeing to waive the notice period.[17]

• [22] On or about 1 October 2025 Mr Manning commenced working with the company that took over the access contract on site at South32.[18]

"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

[25] 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 Manning is entitled to redundancy because of section 119 of the FW Act.

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

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

• [28] 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.[19] This requires the employer to have procured an offer of employment whether or not it is accepted by the employee.[20] 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.

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

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

• [31] 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:[21]

• a. The determination of what constitutes other acceptable alternative employment is an objective exercise.[22]
• b. The mere rejection by the employee of alternative employment does not make it objectively unacceptable.[23] 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.[24]
• c. Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[25]
• 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.[26] 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.[27] This list is not exhaustive. There may be other relevant factors.[28]
• e. To be acceptable, the new employment would need to take account of the employees' skills, seniority, experience and capacity to perform the job.[29]
• 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.[30]

• [32] The onus of establishing that the alternative employment in question is 'acceptable' rests with the applicant employer.[31]

[33] SRG filed an unsigned copy of Mr Manning's casual contract dated 2 June 2023 but not a copy of any of his subsequent contracts of employment. SRG did not file a copy of his most recent contract for permanent employment which set out the applicable terms and conditions for his employment as at the date his position was made redundant. I am therefore not satisfied that SRG have discharged its onus of establishing that the alternative employment in question was objectively acceptable.

[34] In relation to the Alcoa Contract SRG submitted that it constituted 'acceptable' employment because:

1. The duties were unchanged.
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 changed location and conditions of employment is reflected in the terms of their engagement.
3. The additional travel time between Mr Manning's home and Wagerup is insignificant.

• [35] 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.[32]

[36] SRG concede that the renumeration in the Alcoa offer was less. I note that the Alcoa Contract provides that Mr Manning is to be employed not only at Wagerup but also at Kwinana and Pinjarra.

[37] While SRG provided a table with a summary of the key conditions of the South32 Contract, the Alcoa Offer and the NW Offer and one calculating the annual renumeration under each contract it made no other express written submissions as to how the NW Contract constituted acceptable alternative employment.

• [38] Mr Manning 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.[33]

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

• [40] 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.[35]

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

"...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."

• [42] Mr Manning has worked at the South32 site for 11 years. He says that he has always favoured job security and family friendly rosters and locations over higher pay rates. He has a wife and two young children aged 4 and 7. He has a 165 acre farm which he owns and manages in his time off work. Working locally allows him to attend his home or farm quickly in the event of an emergency.[37]

• [43] His younger brother has a severe intellectual disability and lives nearby by with Mr Manning's aging parents. Mr Manning provides respite and emergency care for his brother and parents.[38]

• [44] In his submissions Mr Manning explained that his reason for refusing the NW Offer was that FIFO work was not possible given his family circumstances. He explained that his reasons for refusing the Alcoa Offer were that the Alcoa Offer:[39]

1. would require him to work at Pinjarra, Kwinana or Wagerup. Mr Manning says that one of those sites is twice as far from his home than South32 and the other is three times as far;
2. would require him to work 5 days per week as compared to his current roster of four days and three days off;
3. provided for a lower base rate; and
4. provided for allowances which could be removed.

[45] The comparisons of the financial differences between the roles prepared by Mr Manning and by SRG reveal both offers would result in a significant decrease in Mr Manning's annual remuneration.

[46] The Alcoa Offer contemplates Mr Manning working at any one of three different Alcoa sites, although SRG only written submissions with respect to the travel time to some of those sites. 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 Manning would be required to make the journey many more times each year than he would have if he remained on the roster he was engaged on at South32.

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

[48] In failing to file a copy of Mr Manning's most recent employment contract 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.

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

• [51] An order[40] to this effect will issue with this decision.

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

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

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

[22] 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).

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

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

[27] Feltex (n 22); Australian Chamber (n 22).

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

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

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

[34] Datacom (n 30) at [9], Feltex (n 22) at [89].

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

[40] PR796092.

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