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 Frank Smith (Mr Smith).

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

[3] On 22 October 2025, the FWC directed Mr Smith to advise whether he opposed the Order sought in the Application by 24 October 2025. Mr Smith did not provide a response to the FWC.

[4] In the absence of Mr Smith consenting to the Order sought in the Application directions were issued on 28 October 2025 for the filing of materials to enable the Application to be determined (Directions).

[5] The Directions required Mr Smith to file materials in response to the Application by Thursday 13 November 2025. Mr Smith did not file any materials or contact the FWC to seek an extension to file materials.

[6] On 19 November 2025 Chambers wrote to Mr Smith noting that no materials had been received and granting Mr Smith an extension to comply with the Directions until Friday 21 November 2025. Mr Smith did not file any materials or contact the FWC to seek a further extension to file his materials.

[7] On 28 November 2025 Mr Smith wrote to Chambers advising that he objected to the Application but Mr Smith did not explain why or file any of the materials he had been directed to file.

[8] On 1 December 2025 Chambers wrote to Mr Smith noting that he had still not complied with the Directions and providing him with a further opportunity to comply with the Directions. Mr Smith was provided with an extension to comply with Directions until 4pm (AWST) on Tuesday 2 December 2025. Mr Smith did not file any materials or contact the FWC to seek a further extension to file materials.

[9] On Tuesday 30 December 2025 the parties were asked to advise Chambers by Friday 2 January 2026 if they wanted to be heard orally. Neither party contacted Chambers seeking to be heard orally in relation to the Application.

[10] It is apparent from the materials filed by SRG and the correspondence sent by Chambers to Mr Smith that Mr Smith was on notice from at least 2 October 2025 that the SRG would make the Application and that in the absence of him filing any materials the Application would be determined solely on the basis of the materials filed by SRG.

[11] In the absence of Mr Smith providing any submissions or evidence I have determined this Application based solely on the materials filed by SRG.

[12] Mr Smith commenced his employment with SRG on 4 May 2021 as a Full Time Rope Access Technician Level 1. Mr Smith had progressed to a Level 2 by the time his position was made redundant. SRG filed only the first page of Mr Smith's contract of employment dated 4 May 2011 (South32 Contract). The page provided indicates that he may be required to work at other project locations for other business units but initially he would be employed at the South32's Worsley Site in Collie Western Australia on the following terms:

[13] The page of his South32 Contract filed provides that these conditions could change at the direction of SRG.

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

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

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

[17] While the extract of South32 Contract which was filed appears to provide no restriction on the location at which Mr Smith could be required to perform work or any limitation on changes to the terms and conditions upon which Mr Smith was engaged the parties appear to have proceeded on the basis that a transfer to another site under different terms and conditions of employment did constitute a new and different offer of employment. SRG stating in support of the Application that: "The Applicant does not dispute that the Respondent is entitled to redundancy pay...". This may because of an implied term that the variations must not be so significant as to grossly change the terms and conditions of employment.

[18] On 25 September 2025, SRG offered Mr Smith 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). SRG did not initially file a copy of the Alcoa Offer with its materials and only provided it when separately directed to do so.

[19] The key conditions of employment for the Alcoa Offer are:

[20] On 26 September 2025, Mr Smith emailed SRG and advised that he was declining the offer on the following grounds:

1. "the distance to Wagerup and Pinjarra is even further than the considerable distance I already travel to worsley. Which is not something I wish to increase in terms of fuel, kms on my car and personal fatigue."
2. "The rate of pay offered in the new contract is not comparable to what I'm currently on at Worsley on my roster. The base rate simply doesn't reflect what is required and the allowances offered are not set in stone and can be taken away or altered later."
3. "The hours aren't concrete in the contract and are based on "operational requirements" which means I haven't got locked in 12 hour days and so will be forced to work more days per week to try and make up for the loss."

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

[22] On 30 September 2025 SRG wrote to Mr Smith 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.

[23] The same day SRG also offered Mr Smith another role in the North West of Western Australia (NW Offer). SRG did not include a copy of that contract in the materials they filed and made no clear submissions as to how the offer constituted acceptable alternative employment.

[24] Mr Smith replied to SRG on 2 October 2025 declining the NW Role, asking SRG to waive the notice period and asking how long SRG's application to reduce the amount of severance pay would take to be determined. SRG replied the same day agreeing to waive the notice period and indicating that it anticipated that the FWC determination would take approximately four weeks.

[25] On or about 1 October 2025 Mr Smith 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

[28] 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 Smith is entitled to redundancy because of section 119 of the FW Act.

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

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

• [31] 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.[1] This requires the employer to have procured an offer of employment whether or not it is accepted by the employee.[2] 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.

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

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

• [34] 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:[3]

• a. The determination of what constitutes other acceptable alternative employment is an objective exercise.[4]
• b. The mere rejection by the employee of alternative employment does not make it objectively unacceptable.[5] 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.[6]
• c. Employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.[7]
• 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.[8] 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.[9] This list is not exhaustive. There may be other relevant factors.[10]
• e. To be 'acceptable', the new employment would need to take account of the employees' skills, seniority, experience and capacity to perform the job.[11]
• 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.[12]

• [35] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer.[13] The materials initially filed by SRG were deficient and potentially misleading. SRG did not file a complete copy of the contract of employment under which Mr Smith was employed as at the date his position was made redundant. They did not file a copy of the Alcoa Offer or the NW Offer until directed to do so. Rather filing a table which they say summarised the key elements of the South32 Contract, the Alcoa Offer and the NW Offer. In the absence of evidence to the contrary or any suggestion by Mr Smith that the table is inaccurate I have proceeded on the basis that it accurately reflects the relevant contractual and enterprise arrangements other than that the Alcoa Offer also contemplated employment at Kwinana.

[36] SRG submits that it obtained two acceptable roles for Mr Smith, on an objective basis, for the following reasons:

1. The roles were the same.
2. The renumeration for the Alcoa Offer was slightly higher if penalties and allowances are taken into consideration.
3. 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.
4. The additional travel time between Mr Smith's home and Alcoa Wagerup is an extra 15 minutes each way and between his home and Alcoa Pinjarra an extra 25 minutes each way.

[37] I note that the Alcoa Contract which was not initially filed by SRG provides that Mr Smith is to be employed at Kwinana, Pinjarra or Wagerup. The Alcoa Kwinana Refinery is roughly 155kms and 105 minutes from Mr Smith's home.

[38] SRG did not include a copy of NW Contract in the materials they initially filed and made no substantial submissions as to how the offer constituted acceptable alternative employment.

• [39] The test of what constitutes 'acceptable employment' is an objective one. It does not mean it must be acceptable to the employee.[14]

• [40] Acceptable employment' is not identical employment, as no two jobs could be exactly the same.[15]

• [41] 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.[16]

• [42] As was explained by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia at [89]:[17]

"...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."

[43] Mr Smith declined the offer of employment at the Alcoa sites on the interalia the ground that:

"The rate of pay offered in the new contract is not comparable to what I'm currently on at Worsley on my roster. The base rate simply doesn't reflect what is required and the allowances offered are not set in stone and can be taken away or altered later."

[44] Mr Smith has made no submissions or provided any evidence in support of his assertion that the allowances payable under the Alcoa Agreement can be removed or that the calculation of his potential renumeration by SRG is not correct. I am therefore not satisfied that acceptance of the alternative role would reduce his renumeration.

[45] Mr Smith also declined the offer of employment at the Alcoa sites because of an increase in the distance and time for him to commute to and from his workplace. The Alcoa Kwinana Refinery is roughly 155kms and 105 minutes from Withers. Depending on Mr Smith's precise residential address the travel times and distances provided by SRG for Pinjarra and Wagerup may be less than the actual travel time or distance. Even accepting SRGs estimates the increase in travel time and travel distance is significant not only because of the increase in distance and duration for each journey but because Mr Smith would be required to make the journey many more times each year than he would have if he remained on the seven day on and seven day off roster he was engaged on at South32.

[46] Mr Smith also declined the offer of employment at the Alcoa sites on the grounds that his hours of work were not fixed and would be based on "operational requirements". Mr Smith also declined the offer of employment on the grounds that:

"My roster is not being carried forth into the new contact. My 7 and 7 roster I've had for years and built my entire life around is not something I can deal with losing."

[47] SRG concede that at the time his position at South32 was made redundant Mr Smith was performing a 12 hour x 7 day on and 7 day off roster. This is comparator that SRG have relied upon in its submissions.

[48] A change of roster has pros and cons. Mr Smith will have to attend the workplace more often albeit for a shorter period of time each day to earn the comparable income. He will have every weekend free from work however he will only two day breaks from work rather than seven day breaks. Mr Smith has provided no evidence to explain his preference for one roster over another or why. Nor any submissions as to why the change in roster is objectively detrimental.

[49] There is no evidence before me that the Alcoa Offer would alter the type of duties Mr Smith was required to perform or alter his seniority or his supervisory responsibilities. The Offers preserved Mr Smith's service based entitlements.

[50] In all of the circumstances in the absence of evidence to the contrary I am satisfied that the position offered to Mr Smith was acceptable employment.

• [51] However, a conclusion that the employer has obtained other acceptable employment for the employee does not necessarily mean that the redundancy pay will be reduced to nil. The FWC has a broad discretionary power to determine whether there should be a reduction and if so, what the appropriate amount of such a reduction should be.[18]

[52] In this instance I consider that it is appropriate to reduce the redundancy pay that is payable to Mr Smith because of the impact of the change in location and roster and that in the circumstances it is appropriate to grant an Order reducing his redundancy pay to seven weeks.

• [53] An order[19] to this effect will issue with this decision.

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

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

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

[4] 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).

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

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

[9] Feltex (n 4); Australian Chamber (n 4).

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

[12] Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327 (Datacomm) at [9]; Feltex (n 4)at [89].

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

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

[18] Application by Metcash Trading Limited Trading AS Independent Hardware Group [2025] FWC 2122; Oscar Oscar Group Services Pty Ltd v Ms Alyce Lees [2012] FWA 3901.

[19] PR796099.

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