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 Steve Allen (Mr Allen).

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

[3] On 26 November 2025 the FWC directed Mr Allen to advise whether he opposed the Order sought in the Application by 4 December 2025. On 30 November 2025 Mr Allen advised that he objected to the FWC making the Order but Mr Allen did not explain why.

[4] In light of Mr Allen'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 Allen to file materials in response to the Application by Thursday 18 December 2025. Mr Allen did not file any materials or contact the FWC to seek an extension to file materials. On 19 December 2025, 24 December 2025 and 31 December 2025 Chambers wrote to Mr Allen noting that no materials had been received and inviting him to file his materials. Mr Allen did not file any materials in relation to the Application.

[6] On Monday 12 January 2026 the parties were asked to advise Chambers by Tuesday 13 January 2026 if they wanted to be heard orally. On the same day, Mr Allen wrote to Chambers advising that he wished to maintain his objection and be heard orally on the matter.

[7] As a matter of procedural fairness to SRG to enable it to understand the case it was required to respond to, on Tuesday 13 January 2026 Chambers wrote to Mr Allen directing him to file materials in response to the application by 4pm (AWST) 16 January 2025 for the matter to be listed for a Hearing. Mr Allen did not file his materials by this date, and the Application was not listed for a Hearing.

[8] On 19 January 2026, Mr Allen filed materials in relation to the Application, this was after the directed deadline for filing. My Chambers invited SRG to raise any objections to Mr Allen's late filing and was further invited to provide any materials in response if Mr Allen's late filing was accepted. SRG did not make any objections or express a desire to file any materials in response. Mr Allen's materials were accepted for filing.

[9] 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.

[10] Mr Allen commenced employment with SRG at South32 Worsley Alumina on 5 June 2019 as a full time Rope Access Technician Level 3 (South32 Contract). SRG filed a copy of an unsigned employment contact dated 4 June 2019.

• [11] While the South32 Contract which was filed appears to provide no restriction on the location at which Mr Allen could be required to perform work or any limitation on changes to the terms and conditions upon which Mr Allen 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.[1]

[12] The key terms of the South32 Contract are as follows:

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

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

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

[16] On 24 September 2025, SRG offered Mr Allen 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).

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

[18] On 30 September 2025, Mr Allen emailed SRG and advised that he was declining the Alcoa Offer for the following reasons:

"..the travel requirements would mean commuting further than I am currently able to, and the offered hours and pay are less than what I am earning now. I also feel that the variability around work locations and rosters may not suite my current situation..."

[19] On 1 October 2025 SRG wrote to Mr Allen 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.

[20] Mr Allen ceased working for SRG on 30 September 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

[23] 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 Allen is entitled to redundancy because of section 119 of the FW Act.

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

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

• [26] 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.

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

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

• [29] 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]

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

[31] SRG submits that on an objective basis it obtained an acceptable alternative employment for Mr Allen.

[32] SRG provided tables with summaries of what it says are the key conditions and financial implications of the Alcoa Offer.

[33] SRG submitted that the role 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 Allen's home and Alcoa Wagerup is only 17 minutes each way.

• [34] 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]

[35] SRG conceded that the annual renumeration for the Alcoa Offer was 18% less than Mr Allen's role at South32.

• [36] Mr Allen 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] There is no evidence to suggest that the South32 Contract had been replaced by a different employment contract by the time Mr Allen was made redundant therefore I have proceeded on the basis that the South32 Contract filed by SRG was the correct comparator for the Alcoa Offer.

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

[42] However the comparisons of the financial differences between the roles prepared by SRG reveal that accepting the Alcoa offer would result in a significant decrease in Mr Allen's remuneration.

[43] Although SRG only made submissions with respect to the travel time to one of the Alcoa sites the Alcoa Offer contemplates Mr Allen 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 Allen 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.

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

• [46] An order[20] to this effect will issue with this decision.

[1] Applicant's Outline of Submissions, 11 December 2025 at 4.

[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 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].

[20] PR796086.

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