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 Stephen Henderson (Mr Henderson).

[2] SRG have sought an order that the amount of redundancy pay be reduced from six (6) weeks of Mr Henderson'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 Henderson (Application).

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

[4] In light of Mr Henderson'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 Henderson to file materials in response to the Application by 4pm (AWST) on Thursday 18 December 2025.

[6] On 18 December 2025 Mr Henderson informed Chambers that he wished to withdraw his objection to the Order sought in the Application because he had been offered casual employment with SRG at South32, Worsley Alumina.

[7] Mr Henderson did not file any materials in relation to the Application by the dates set out in the Directions or subsequently. In the absence of Mr Henderson providing any submissions or evidence I have determined this Application based solely on the materials filed by SRG.

[8] Mr Henderson commenced his employment with SRG on 6 February 2023 as a casual Rope Access Technician Level 3. According to the Form F45A - Application to vary redundancy pay at the time of the termination of Mr Smith's employment he was employed by SRG on a part time basis.

[9] According to SRG, from on or around 28 December 2023 Mr Henderson's terms and conditions of employment were governed by the SRG Global Integrated Services Pty Ltd (South32) Enterprise Agreement 2023 (South 32 Agreement).

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

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

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

[13] The key conditions of employment for the Alcoa Contract are:

[14] On 26 September 2025, Mr Henderson emailed SRG and advised that he was declining the offer because it did "not align with his current home life and commitments."

[15] On 30 September 2025 SRG wrote to Mr Henderson confirming that in the absence of him accepting the alternative employment his employment with SRG would be terminated effective 14 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.

[16] The same day SRG also offered Mr Henderson another role in the North West of Western Australia (NW Offer).

[17] On 6 October 2025 Mr Henderson replied to SRG declining the offer of the NW Role on the grounds that it would result in a significant decrease in his renumeration.

[18] Mr Henderson ceased working for SRG on 14 October 2025.

[19] On or about 22 October 2025 Mr Henderson accepted an offer of casual employment with SRG 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

[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 Henderson 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 Henderson's employer.

[24] SRG submits that it obtained other acceptable employment for Mr Henderson 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.[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.

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

[27] SRG submit that it has obtained acceptable employment for Mr Henderson 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 '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]

• [29] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer.[13]

[30] SRG submits that on an objective basis it obtained two acceptable roles for Mr Henderson, the Alcoa Offer and the NW Offer. SRG filed a copy of Mr Henderson's casual contract but not a copy of the terms and conditions of his part time employment. It is therefore unclear what the precise terms and conditions of Mr Henderson's employment were at the time of the termination of his employment.

[31] SRG provided a table with what they say is a summary of the key conditions of Mr Hendersons employment at South32, the Alcoa Offer and the NW Offer and one calculating the annual renumeration under each contract. SRG made limited submissions as to how the NW Contract constituted acceptable alternative employment.

[32] In relation to the Alcoa Contract, SRG submitted that it constituted acceptable alternative employment because:

1. The total annual renumeration was higher.
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 16 minutes.

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

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

• [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.[16]

• [36] 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."

[37] Mr Henderson does not oppose the Order. It appears he has now accepted alternative employment with SRG at the South32 site.

[38] There is no evidence before me that the Alcoa Contract would alter the type of duties Mr Henderson was required to perform or alter his seniority or his supervisory responsibilities. [1] 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 Henderson's service based entitlements.

[39] In the absence of any objection by Mr Henderson, in all of the circumstances I am satisfied that the position offered to Mr Henderson was acceptable employment in Mr Henderson's circumstances.

• [40] 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]

[41] Given the lack of evidence of the precise terms and conditions of Mr Henderson's part time employment I would have been disinclined to grant the Order in the form sought however in light of his written confirmation that he has does not oppose the Order it appears that Mr Henderson agrees the alternative employment was 'acceptable'. I consider that it is appropriate to reduce the redundancy pay that is payable to Mr Henderson and that in the circumstances it is appropriate to grant an Order reducing his redundancy pay to zero.

• [42] 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 (Datacom) at [9]; Feltex (n 4) at [89].

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

[15]Datacom (n 12) at [9]; Feltex (n 9) at [89].

[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] PR796105.

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