s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Variation of redundancy pay - whether other acceptable employment offered - alternate role did not constitute acceptable employment - application dismissed.

[1] Uniting Church Homes T/As Juniper has applied under s 120 of the Fair Work Act 2009 (Cth) to vary its obligation to pay redundancy pay under s 119 of the Act. The application is in relation to three former employees: Ms Anna Williams, Ms Manjula Patel, and Ms Andrea Milburn (Employees). Juniper seeks to reduce the Employees' entitlement to redundancy pay to nil on the basis that it had obtained other acceptable employment for them. The Employees do not agree.

[2] I held a determinative conference for this matter on Wednesday 28 January 2026. Juniper relied on the written and oral evidence of Ms Eve Currie (Chief People Officer), and oral evidence of Ms Melina Quinlan (Workforce Program Lead). The Employees gave evidence in support of their positions.

[3] Having considered the evidence and materials in this matter, I find that Juniper did not obtain acceptable employment for the Employees. Juniper's application is therefore dismissed.

[5] The following facts are not contested between the parties.

[6] Juniper is a not-for-profit organisation in the aged-care sector. The Employees were all employed in the position of Therapy Assistant. Prior to Wednesday 10 September 2025, Juniper employed approximately 96 Therapy Assistants. 83 of these Therapy Assistants were allocated to residential facilities, with the remainder allocated to the Allied Health Team.

[7] Effective from Tuesday 1 July 2025, the Australian Federal Government amended the Australian National Aged Care Classification Funding Model. This restricted the roles that can deliver services to residents and be included in care minute quotas. As of 1 July 2025, care minutes can only be delivered by registered or enrolled nurses, personal care workers and assistants in nursing. Therapy Assistants cannot deliver care minutes.

[8] Juniper's funding is tied to the delivery of care minute targets. Accordingly, Juniper reviewed the Therapy Assistant position. As the position at the time would not be included in care minute targets, Juniper decided that the services offered through the Therapy Assistant position would not longer be financially sustainable for Juniper and thus made the decision to remove the role entirely.

[9] Juniper created a new position of Personal Care and Activities Assistant. The PCAA position is a hybrid role that incorporated 40% of the Therapy Assistant duties and 60% of the Multi-Skilled Carer duties. The number of MSCs employed did not change.

[10] Juniper offered the Therapy Assistants redeployment into the PCAA role on the basis that there would be no changes to their hours of work or location; continuity of service; and higher remuneration. All the Therapy Assistants agreed to the redeployment into the PCAA role except for the Employees. It is not in dispute that Juniper and the Employees engaged in consultation regarding the role change. The Employees were subsequently made redundant.

• [11] The job description for the Therapy Assistant role states that the purpose of the position is to, "assist with aspects of day to day care, lifestyle, leisure and individualised therapy programs under the direction of the Allied Health team".[1] The job requirements are listed as:

• Effective implementation of therapy, lifestyle, leisure and/or activity program. This involved the development, implementation and review of programs for residents on a group or individual basis as guided by Allied Health professionals; and

• Ensure compliance with occupational, safety and health requirements, including appropriate injury risk management.

[12] The Employees' evidence is that at the time they were employed by Juniper, they were required to hold a Certificate 3 in Allied Health. Ms Currie and Ms Quinlan were not employed by Juniper at this time, and so could not speak to this. I accept the Employees' evidence on this point.

[13] The position description for the PCAA role lists seven "key result areas": personal care support; monitoring and responding to deterioration; activities and social engagement; documentation and communication; professional conduct and development; legislative compliance and responsibilities; and compliance with work health and safety requirements.

• [14] The area of focus in this matter is the inclusion of personal care support in the PCAA role. The position description sets out the following responsibilities under personal care support:[2]

• "Provide required assistance to customers to satisfy their personal care needs including bathing, dental hygiene, dressing, grooming and continence hygiene to ensure they remain clean and comfortable.

• Ensure customers can maintain adequate hydration and nutrition by providing assistance in meals ordering, setting tables, serving meals (including cutting up food), assisting with diet and fluid intake, preparing beverages and snacks and washing all items as needed.

• Support the maintenance or restoration of each customer's independence by providing assistance in the use of mobility and sensory aids.

• Assist with repositioning, transferring and mobilising of customers within the competencies outlined in the Juniper "No Lift" customers handling system, observing safe practices at all times in accordance with policies and procedures and utilising appropriate equipment.

• Maintain a clean and comfortable environment by tidying rooms as required including communal areas, collecting dirty linen and clothes, changing bed linen etc.

• Promote dignity, respect and autonomy in accordance with customer choice, documentation including care plans, and in line with known needs and wishes to ensure care is person centred.

• Provide high-quality, trauma-aware, and healing-informed care to customers in a way that respects their personal history, promotes healing, and ensures dignity and wellbeing at all times."

• [15] Juniper tendered a document from the Department of Health and Aged Care titled, "Care minutes responsibility: guide for residential aged care providers". The Care Minutes Guide states that care minutes can only be delivered by registered nurses; enrolled nurses; and personal care workers and assistants in nursing.[3] Relevantly, a personal care worker is an employee, "...whose primary responsibility is to directly provide personal care services to residents under the supervision of an RN or EN. Personal care services primarily consist of assisting with daily living activities, attending to personal hygiene, physical, administrative and cognitive needs and assisting with clinical care and provision of medical treatments and procedures where qualified to do so."[4]

[16] The Care Minutes Guide further outlines that activities that can be reported as care minutes include assisting residents with:

• "daily living routines and direct care activities (such as self-care or personal care) for example, assisting with eating and drinking, monitoring fluid intake, skin care, ambulation, bathing and washing, dressing, hair care, mouth care, positioning, shaving, bladder and bowel care (continence management), mobility and transfers (such as getting in and out of bed or to and from the toilet)
• social and emotional support for residents and their families, for example, supporting residents to be and feel connected, heard, valued and fulfilled

• • regular monitoring and support of residents' health and wellbeing."[5]

[17] Section 119 of the Act provides for the following redundancy pay entitlements:

(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

(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

[18] Section 120 of the Act provides:

"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 specific 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."

[19] In this matter, I am satisfied on the evidence that with regards to redundancy pay in accordance with s 119 of the Act:

(a) Ms Milburn was entitled to be paid eight weeks;

(b) Ms Patel was entitled to be paid 14 weeks; and

(c) Ms Williams was entitled to be paid 13 weeks.

[20] Juniper does not contend that it cannot pay the above amounts.

• [21] In relation to s 120(1)(b)(i) of the Act, the Full Bench in Australian Commercial Catering Pty Ltd Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[6] set out that the test in relation to s 120(1)(b)(i) of the Act is an objective one and is not determined by whether the employment is subjectively acceptable to the employee.[7] Further, that once the preconditions in s 120(1) are satisfied, the determination of whether to reduce an employee's entitlement to redundancy pay requires the exercise of a broad discretionary power.[8]

• [22] In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia,[9] a Full Court of the Federal Court found that an employer "obtains" other acceptable employment when it acquires or gets the employment by its conscious, intended acts.

• [23] In Spotless Services Australia Limited t/as Alliance Catering,[10] Deputy President Sams helpfully summarised authorities on what "other acceptable employment" means and relevantly stated:

"[65] The above decisions have some common features, including:

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

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

• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.

• An employee's prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively 'acceptable'.

• 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.

• There are a range of factors of varying weight, according to an employee's particular circumstances, which may be taken into account to assess the acceptability of alternative employment."

4.1 Did Juniper obtain other acceptable employment?

[24] In this matter, it is not contested - and I am satisfied - that Juniper obtained the PCAA role for the Employees. The question is whether the PCAA role was acceptable employment.

[25] The key contention from the Employees is that the PCAA role includes direct personal care duties such as continence care; showering; dressing; grooming; and manual handling of residents. The Employees argue that these duties constitute a substantial change to the Therapy Assistant role.

[26] Juniper argues that due to the broad definition of "personal care", in practice the PCAA role is very similar to the Therapy Assistant role. Ms Currie's evidence was that since the PCAA role was implemented in September 2025, there was "anecdotal evidence from across a number of residential sites" that indicated there had been very little change in the day-to-day activities of employees who had previously been employed as Therapy Assistants.

[27] I have difficulty with this submission and evidence for two reasons. Firstly, during the determinative conference I asked Ms Currie what this "anecdotal evidence" was. Ms Currie explained that there had been consultation with the PCAAs, but that was done through their line managers, who then reported it to Ms Quinlan, who then reported it to Ms Currie. Neither Ms Currie nor Ms Quinlan spoke directly to the PCAAs. Ms Currie's evidence is that as she is the Chief People Officer, she has little to no interaction with the operational side of the business. Juniper also did not tender any documentation or otherwise substantiate this "anecdotal" evidence. Accordingly, I cannot give this evidence any weight.

[28] Secondly, Juniper's submission that the PCAA role is effectively the same as the Therapy Assistant role in practice is at odds with their restructure to qualify the role for care minute targets. If I were to accept Juniper's claim that the PCAA role in practice is just the Therapy Assistant role with minimal change, it would call into question the genuineness of the restructure to meet the new funding guidelines.

[29] It is not in dispute that the Therapy Assistant role did provide certain personal care duties, and that the Therapy Assistant and PCAA roles have many similar duties. However, I do not accept Juniper's submission that effectively downplays the significance of the direct personal care duties in the PCAA role.

[30] Even if I were to accept Ms Currie's evidence that the direct personal care duties do not comprise a significant part of a PCAA's time at work, it is clear from the PCAA job description that direct personal care duties such as those outlined in paragraph [25] are an important part of the PCAA role. This is supported by the fact that the direct personal care duties are the substantive difference between the Therapy Assistant role and PCAA role and part of what allows the PCAA role to qualify for care minutes.

[31] It goes without saying that direct personal care duties such as continence and hygiene care of aged care residents take a certain care and intimacy that was not required for the Therapy Assistant Role. Many aspects of personal health care take a certain constitution and involve significant health considerations that were not a factor for Therapy Assistants. Juniper agreed during the determinative conference that such duties also require extra training.

[32] I accept the Employees' evidence that these direct personal care duties were not a part of the Therapy Assistant role. Ms Currie's evidence is that there was a "general expectation" that if a resident was doing an activity and needed to go to the toilet the Therapy Assistant could support them to do this, and it was done in practice. The Employees' evidence is that a Therapy Assistant would assist a resident to the toilet, where they would be handed off to a MSC for assistance with toileting. Noting my observations on Ms Currie's evidence generally, I find the evidence of the Employees to be more credible.

[33] In assessing the duties of the two roles; the nature of the direct personal care duties; the higher pay for the PCAA role; and the fact the hours and location of work would not change; I find that the PCAA role did not constitute "other acceptable employment". I find that Juniper did not obtain other acceptable employment for the Employees. This means that the discretion to reduce the Employees' redundancy entitlements under s 120(2) of the Act is not enlivened.

[34] On this basis, I order that Juniper's application is dismissed.

[6] [2016] FWCFB 5467.

[9] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90.

[10] [2016] FWC 4505.

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