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 Ashleigh Hartigan (Mr Hartigan).

[2] SRG have sought an order that the amount of redundancy pay be reduced from seven (7) weeks of Mr Hartigan'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 Hartigan (Application).

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

[4] In light of Mr Hartigan'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 Hartigan filed detailed submissions and evidence in support of his objection including identifying and applying relevant authorities. 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 Agreed Statement of Facts Mr Hartigan commenced his employment with SRG on 3 June 2022 as a casual Rope Access Technician Level 1.[1] SRG filed an unsigned copy of a casual contract of employment which commenced on 3 June 2022 which described his commencement role as a Level 1 Rope Access Intermediate Rigger.[2]

• [9] On 21 December 2022 Mr Hartigan commenced employment as a full time Rope Access Technician Level 2.[3] At the time his position was made redundant Mr Hartigan had progressed to a Rope Access Technician Level 3 and was working on twelve hour seven days on seven days off roster.[4]

[10] SRG say that at the time his position was made redundant Mr Hartigan's terms and conditions of employment were be governed by the SRG Global Integrated Services Pty Ltd (South 32) Enterprise Agreement 2023 (South32 Agreement).

• [11] Towards the end of August 2025, SRG's General Manager - South West, Mr Mark Cowle, met with Mr Hartigan 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.[5]

• [12] This information was confirmed in writing on 27 August 2025.[6]

• [13] It was not until 24 September 2025, SRG offered Mr Hartigan a contract for alternative employment at various Alcoa sites (Alcoa Offer).[7] 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).

• [14] The key conditions of employment for the Alcoa Offer were:[8]

• [15] On 26 September 2025, Mr Hartigan emailed SRG and advised that he was declining the offer for the following reasons:[9]

1. The offer was for a role a level lower.
2. The offer was for work at three different sites all of which were further in distance and with an increased travel time.
3. He had moved residential location from Eaton to Australind.
4. A change in roster from a 7 days on,7 days off roster to a Monday to Friday roster would prevent his wife working and adversely impact on their family's financial position.
5. The rate of pay would be lower.

[16] In the same correspondence Mr Hartigan indicated that he wished to waive his notice period.

• [17] On 30 September 2025 SRG wrote to Mr Hartigan confirming that in the absence of him accepting the alternative employment his employment with SRG would be terminated effective 28 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. [10]
• [18] The same day SRG also offered Mr Hartigan another role in the North West of Western Australia (NW Offer). The key terms of the NW Offer were as follows:[11]

• [19] Mr Hartigan replied to SRG on 30 September 2025 declining the NW Role, asking SRG to waive his notice period. SRG replied the same day agreeing to waive the notice period.[12]

• [20] Mr Hartigan ceased employment with SRG on 30 September 2025. [13]

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

"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

[24] 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 Hartigan is entitled to redundancy because of section 119 of the FW Act.

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

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

• [27] 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.[14] This requires the employer to have procured an offer of employment whether or not it is accepted by the employee.[15] 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.

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

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

• [30] 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:[16]

• a. The determination of what constitutes other acceptable alternative employment is an objective exercise.[17]
• b. The mere rejection by the employee of alternative employment does not make it objectively unacceptable.[18] 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.[19]
• c. Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[20]
• 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.[21] 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.[22] This list is not exhaustive. There may be other relevant factors.[23]
• e. To be acceptable, the new employment would need to take account of the employees' skills, seniority, experience and capacity to perform the job.[24]
• 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.[25]

• [31] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer.[26] SRG filed an unsigned copy of Mr Hartigan's casual contract of employment dated 3 June 2022 in which he was employed as a casual Level 1 Rope Access Intermediate Rigger at South32 Worsley (South32 Contract).[27] SRG did not file a copy of his 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.

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

1. The offer was for the same role.
2. SRG is engaged in an industry in which it is required to perform specific scopes of work for fixed periods of time at varying locations 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.

• [33] 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.[28]

• [34] SRG concede that the renumeration for both offers was less.[29]

• [35] Mr Hartigan submits that the employment offered is not objectively 'acceptable'. The test of what constitutes 'acceptable' employment is an objective one. It does not mean it must be acceptable to the employee.[30]

• [36] 'Acceptable' employment is not identical employment, as no two jobs could be exactly the same.[31]

• [37] 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.[32]

• [38] As was explained by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia at [89]:[33]

"...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."

[39] Mr Hartigan is married with children below school age. His wife works during his rostered seven days off and he cares for their children. Job security is very important to him given his personal circumstances and this impacted on his confidence in the Alcoa offer.

[40] SRG says Mr Hartigan was offered the same role however the Alcoa Offer filed by SRG with their materials was for a role a level lower than Mr Hartigan's existing level. Both the NW Offer and the Alcoa Offer offered lower rates of pay. The NW Offer was at a significantly lower rate.

• [41] The Alcoa Offer contemplates Mr Hartigan working at any one of three different Alcoa sites, although SRG only made submissions with respect to the travel time to one of those sites.[34] Mr Hartigan's evidence is that the commute to Kwinana would be an hour longer and 100 kms further. It is not contested that the travel time and distance to both Pinjarra and Wagerup would also be greater than his existing commute. 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 Hartigan 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.[35]

[42] The NW Offer contemplated Mr Hartigan working away from home leaving his wife with sole custody of their young children and undertaking travel in his own time.

[43] Most significantly the Alcoa Offer proposed a roster of ten hour days five days per week in contrast to Mr Hartigan's existing roster of twelve hour days for seven days on then seven days off preventing his wife working which would impose a significant and detrimental impact on the financial position of their family. Similarly, the NW Offer contemplated FIFO work which would have resulted in Mr Hartigan being absent from his family during his rostered periods also impacting on his wife's capacity to work and her caring responsibilities.

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

[45] In failing to file a copy of Mr Hartigan'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.

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

• [48] An order[36] 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 Hartigan's start date was 7 June 2022.

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

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

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

[17] 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);.

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

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

[22] Feltex (n 17); Australian Chamber (n 17).

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

[25] Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327 (Datacom) at [9]; Feltex (n 17) at [89].

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

[30] Australian Chamber of Manufactures v Derole Nominees Pty Ltd [1990] AIRC 980; (1990) 140 IR 123.

[31] Datacom (n 25) at [9]; Feltex (n 17) at [89].

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

[36] PR796101.

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