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 Ashley Darcey (Mr Darcey).

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

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

[4] In light of Mr Darcey'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] The Directions required Mr Darcey to file materials in response to the Application by Thursday 18 December 2025.

[6] On 10 December 2025 Mr Darcey filed documentary evidence in relation to his objection. On 11 December 2025 Chambers provided him with templates to assist him to prepare the remainder of the materials he had been directed to file. On 11 December 2025, 19 December 2025 and 24 December 2025 he was invited to file witness evidence and submissions in support of his objection to the Application but failed to do so.

[7] Mr Darcey did not file any further materials in relation to the Application by the dates set out in the Directions or subsequently. The materials filed by SRG were at best incomplete and potentially misleading.

[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] Mr Darcey commenced employment with SRG at South32 Worsley Alumina on 28 December 2022[1] as a full time Rope Access Technician Level 3 (South32 Employment). SRG filed a copy of an unsigned employment contact dated 15 December 2022 under which Mr Darcey was engaged for a fixed task for three months commencing 28 December 2022. SRG did not file any other contract or any evidence of any extension of the fixed task contract which would evidence what Mr Darcey's contractual terms and conditions of employment were at the time he was made redundant.

[10] SRG say that the SRG Global Integrated Services Pty Ltd (South32) Enterprise Agreement 2023 (South 32 Agreement) applied to Mr Darcey at the time he was made redundant.

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

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

[13] On 1 October 2025, SRG offered Mr Darcey a contract for alternative employment at various Alcoa sites (Alcoa Offer). 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 are:

[15] On 1 October 2025 SRG also offered Mr Darcey another role in the North West of Western Australia (NW Offer). Accord to the NW Offer employment in this role would be covered by the SRG Global Integrated Maintenance Services Enterprise Agreement 2018.

[16] The key conditions of employment for the NW Offer are:

[17] On 2 October 2025, Mr Darcey emailed SRG and advised that he was declining both offers for the following reasons:

" - insecurity of these offers of ongoing employment

• - Reduced hourly rate
• - More working days overall for the year
• - FIFO is not an option for me
• - Travel to the Alcoa sites is further travel time along Southwestern hwy which I'm not keen on each day"

[18] On 3 October 2025 SRG wrote to Mr Darcey confirming that in the absence of him accepting the alternative employment his employment with SRG would be terminated effective 16 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.

[19] Mr Darcey ceased working for SRG on 16 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

[22] 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 Darcey is entitled to redundancy because of section 119 of the FW Act.

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

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

• [25] 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.[2] This requires the employer to have procured an offer of employment whether or not it is accepted by the employee.[3] 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.

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

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

• [28] The principles to be applied in determining whether the alternative employment obtained by SRG constitutes 'acceptable' employment for the purposes of section 120 of the FW Act include:[4]

• a. The determination of what constitutes other acceptable alternative employment is an objective exercise.[5]
• b. The mere rejection by the employee of alternative employment does not make it objectively unacceptable.[6] 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.[7]
• c. Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[8]
• 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.[9] 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.[10] This list is not exhaustive. There may be other relevant factors.[11]
• e. To be acceptable, the new employment would need to take account of the employees' skills, seniority, experience and capacity to perform the job.[12]
• 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.[13]

• [29] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer.[14]

[30] SRG submits that on an objective basis it obtained two acceptable roles for Mr Henderson, the Alcoa Offer and the NW Offer.

[31] SRG provided a table with a summary of what it says are the key conditions of the South32 Employment, the Alcoa Offer and the NW Offer and one calculating the annual renumeration for each role. SRG file no evidence to support the information contained in these tables in relation to Mr Darcey's employment at South32. SRG only filed a copy of an unsigned employment contact dated 15 December 2022 under which Mr Darcey was engaged for a fixed task for three months. SRG did not file any other contract or any evidence of any extension of the Fixed Task contract which would evidence what Mr Darcey's contractual terms and conditions of employment were at the time he was made redundant.

[32] SRG submitted that the roles offered constituted acceptable alternative employment because:

1. The offers were for roles with the same duties.
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 Henderson's home and Alcoa Wagerup is only 17 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.[15]

[34] Other than providing the comparison tables SRG made limited express written submissions as to how the NW Contract constituted acceptable alternative employment.

[35] SRG conceded that the renumeration in both offers was less than Mr Darcey's current annual renumeration. I note that the Alcoa Contract provides that Mr Darcey is to be employed not only at Wagerup but also at Kwinana and Pinjarra.

• [36] Mr Darcey 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.[16]

• [37] Acceptable employment' is not identical employment, as no two jobs could be exactly the same.[17]

• [38] 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.[18]

• [39] As was explained by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia at [89]:[19]

"...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."

• [40] In the absence of SRG filing a contract or any evidence of any extension of the Fixed Task contract which would evidence what Mr Darcey's contractual terms and conditions of employment were at the time he was made redundant I am not satisfied that SRG has discharged its onus of establishing that the alternative employment in question is acceptable.[20]

[41] Even if the comparison tables did accurately summarise his South32 employment conditions I would be disinclined to find that the roles offered are acceptable employment in Mr Darcey's circumstances. The comparisons of the financial differences between the roles prepared by SRG reveal both offers would result in a significant decrease in Mr Darcey's remuneration.

[42] Although SRG only made submissions with respect to the travel time to one of the Alcoa sites the Alcoa Offer contemplates Mr Darcey working at any one of the three different Alcoa sites. The increase in travel time and travel distance to those sites is significant not only because of the increase in distance and duration for each journey but because Mr Darcey 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.

[43] Notwithstanding any purported contractual right to vary roster patterns, the change in roster associated with either offer would be significant and a reasonable ground for Mr Darcey to refuse the offers.

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

• [46] An order[21] to this effect will issue with this decision.

[1] In in the Form F45A - Application to vary redundancy pay SRG variously stated that his start date was 15 December 2022 and 19 December.

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

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

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

[5] 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).

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

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

[10] Feltex (n 5); Australian Chamber (n 5).

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

[13] Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327 (Datacom) at [9]; Feltex (n 5) at [89].

[14] NUW v Tontine Fibres [2007] AIRCFB 1016 (Tontine Fibres) at [24].

[15] Applicant's Outline of Submissions, 11 December 2025, at 31.

[17] Datacom (n 13) at [9]; Feltex (n 5) at [89].

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

[21] PR796103.

Printed by authority of the Commonwealth Government Printer