BGIS Pty Ltd Trading as BGIS v Brendon Clarke

Case •

[2025] FWC 2164

•

24 JULY 2025
[2025] FWC 2164

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.120—Redundancy pay

BGIS Pty Ltd Trading AS BGIS
v

Brendon Clarke

(C2025/2720)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 24 JULY 2025

Application to vary redundancy pay for other employment or incapacity to pay Variation of redundancy pay

Introduction and factual background 

  1. This is an application made by BGIS Pty Ltd trading as BGIS (BGIS) for an order pursuant to s.120 of the Fair Work Act 2009 (FW Act) reducing the amount of redundancy pay to which Mr Brendon Clarke is entitled to zero. 

  1. Mr Clarke was employed by BGIS on 23 July 2018 as a Facilities Manager at Edith Cowan University (ECU) in Perth, and ceased employment on 30 April 2025 because of redundancy. Mr Clarke appeared at the initial case management conference but did not file any material in relation to the application or attend the hearing. 

  1. BGIS is a facilities management company which manages properties on behalf of its clients across the Asia Pacific Region.  

  1. On 14 February 2025, Mr Bruce Henderson, the BGIS General Manager of Contracts in Western Australia, sent a letter to the 11 BGIS employees who worked at ECU to advise them that the BGIS contract with ECU had not been renewed and would subsequently cease on 30 April 2025. A consultation process followed, which included consideration of redeployment opportunities for affected employees to work on another BGIS contract. 

  1. Mr Clarke and two of his colleagues who also worked on the ECU contract and were facing potential redundancy as Facilities Managers were all interviewed for a BGIS Estate Services Manager role at Perth Stadium. Mr Clarke was the successful candidate and was offered the role verbally on or about 6 March 2025.  

  1. In the course of the interview for the Perth Stadium role, the working hours were communicated to Mr Clarke as being from 9am to 5pm Monday to Friday. Mr Henderson, who attended the interview on behalf of BGIS, said that it was recommended that the Estate Services Manager attend one game every month in order to understand how event operations affected the management of the building infrastructure. It was communicated during this meeting that this was not a hard and fast requirement, but it was beneficial to the role and to management of the team generally that the Estate Services Manager understand the implications of their work on event management. It was also explained at the time that it was common for team members to select convenient days to attend these events so their personal time was not affected. It was also made clear that any attendance on an event day would be compensated by a day off the following week. 

  1. Mr Clarke declined the role verbally on or about 14 March 2025, as he had accepted a role directly with ECU as a Facilities Manager for the new ECU City campus. This position was external to BGIS and was not a transfer of business. ECU did not take on BGIS employees’ entitlements when offering roles directly to former BGIS employees. Mr Clarke followed up his advice by an email to Mr Henderson dated 25 March 2025 which relevantly provided: 

I have accepted a role with ECU as Facilities Manager for the new City Campus. My decision was not solely based on the increased salary but also on the opportunity to manage a diverse range of hard services once the building is operational. The role includes overseeing high-tech features and being involved in the commissioning of services, which will give me valuable insight into the building’s operations before it is occupied. 

Another key factor in my decision was the requirement to work outside regular weekday hours at the Stadium. With a young family, my weekends are dedicated to spending time with them, and this played a significant role in my choice. 

  1. On 27 March 2025, BGIS issued Mr Clarke with a letter confirming that his employment was ending with BGIS on 30 April 2025 due to declining the direct redeployment opportunity and notifying him that his one month notice period would commence.

  1. While employed by BGIS, Mr Clarke accrued non-transferable entitlements including pro-rata long service leave of 235.75 hours ($12,751.72), and personal leave of 528.14 hours ($28,567.09), totalling $41,318.81. 

  1. BGIS provided the Commission the position descriptions of Mr Clarke’s role with ECU and the role at Perth Stadium. BGIS confirmed that both roles received the same annual salary and that the working hours for both roles were 40 per week. In the case of the ECU role, BGIS explained that ECU had a requirement for after hours on-call work which was rotated among all team members, to ensure a fair distribution of responsibilities.

Statutory framework 

  1. Section 119 sets out the circumstances in which an employee is entitled to redundancy pay. It provides: 

119 Redundancy pay

Entitlement to redundancy pay 

 (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. 

Amount of redundancy pay 

 (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: 

Redundancy pay period 
Employee’s period of continuous service with the employer on termination  Redundancy pay period 
1  At least 1 year but less than 2 years  4 weeks 
2  At least 2 years but less than 3 years  6 weeks 
3  At least 3 years but less than 4 years  7 weeks 
4  At least 4 years but less than 5 years  8 weeks 
5  At least 5 years but less than 6 years  10 weeks 
6  At least 6 years but less than 7 years  11 weeks 
7  At least 7 years but less than 8 years  13 weeks 
8  At least 8 years but less than 9 years  14 weeks 
9  At least 9 years but less than 10 years  16 weeks 
10  At least 10 years  12 weeks 

(3) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer. 

  1. Section 120 sets out the circumstances in which an employer may make an application to the Commission to vary the amount of redundancy pay that an employee is entitled to be paid because of s.119. It provides:

120 Variation of redundancy pay for other employment or incapacity to pay 

(1) This section applies if: 

 (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and 

 (b) the employer: 

 (i) obtains other acceptable employment for the employee; or 

 (ii) cannot pay the amount. 

 (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. 

Consideration 

  1. In dealing with an application under s.120, the Commission must first determine whether the preconditions for the application as set out in s.120(1) are satisfied. These preconditions are that the employee the subject of the application has an entitlement under s.119 to redundancy pay, and that the employer has either obtained other acceptable employment for the employee or cannot pay the redundancy entitlement.1 

  1. In the current application, there is no dispute that Mr Clarke is entitled to redundancy pay under s.119(1)(a) and that the amount that Mr Clarke is entitled to under s.119(2) is 11 weeks pay. BGIS submitted that it obtained other acceptable employment for Mr Clarke under s.120(1)(b)(i) by offering him the role of Estate Services Manager at Perth Stadium.

  1. Whether alternative employment obtained by the employer is ‘acceptable’ is to be determined objectively, not by reference to whether the employment is subjectively acceptable to the employee. The determination of whether alternative employment is acceptable requires an assessment and value judgment on the part of the decision-maker.2 

  1. I have reviewed the position descriptions of Mr Clarke’s role with ECU and the role at Perth Stadium and note that although they have different job titles, they involve similar responsibilities and duties, are paid the same salary and require almost the same working hours. The role at Perth Stadium appears to involve less travel time from Mr Clarke’s residence than the role at ECU.  

  1. The only significant matter of difference, which Mr Clarke cited in correspondence to BGIS as one of the reasons he declined the Perth Stadium role, was the ‘requirement’ to work outside regular weekday hours at the Stadium which was incompatible with Mr Clarke’s family responsibilities. Although Mr Clarke’s reluctance to work on weekends because of his family responsibilities is understandable, I note that based on the submissions of BGIS, there appears to be an expectation, rather than a requirement, that the Estate Services Manager attend one game on the weekend every month.  

  1. Even if attendance at a weekend game was an expectation rather than a requirement, this may have still resulted in the Perth Stadium position being unacceptable to Mr Clarke. However, I am required to assess the issue of whether alternative employment is acceptable on an objective basis rather than a subjective basis. Having regard to the uncontested evidence before me, particularly the similarities between the two roles, their respective locations and that the pay is the same in both roles, I am satisfied that BGIS obtained other acceptable employment for Mr Clarke by offering him the role of Estate Services Manager at Perth Stadium. 

  1. As I am satisfied that the preconditions for the application as set out in s.120(1) are met, I now turn to determine whether the amount of redundancy pay should be reduced to zero as sought by BGIS. This requires the exercise of a broad discretionary power.3 In my view, it is appropriate that the amount of redundancy pay that Mr Clarke is entitled to be paid be reduced on account of Mr Clarke being offered the Perth Stadium position. However, I do not accept that it is appropriate to reduce the redundancy pay to zero, having regard to the purpose of redundancy pay, which, according to the termination, Change and Redundancy Case,4 includes compensation for non-transferable credits such as sick leave and long service leave.  

  1. While employed by BGIS, Mr Clarke accrued non-transferable entitlements totalling $41,318.81. Mr Clarke’s employment was terminated by BGIS as a result of the cessation of its contract with ECU on 30 April 2025. This was less than three months before the date that Mr Clarke became eligible for pro rata long service leave under the Long Service Leave Act 1958 (WA). BGIS’ liability in relation to Mr Clarke’s personal leave has been significantly reduced as a result of Mr Clarke ceasing employment. I believe these matters are relevant to the appropriateness of reducing the redundancy payments to zero.

  1. BGIS submitted that it is not reasonable to take into consideration non-transferable entitlements when reviewing its application to vary redundancy pay for Mr Clarke, as Mr Clarke had the opportunity to continue employment with BGIS and maintain access to these accruals. BGIS submitted that Mr Clarke was offered a suitable reasonable redeployment opportunity with BGIS which had no impact on his salary or level of responsibility and would have offered Mr Clarke an opportunity to grow further with BGIS in a similar environment. 

  1. Although I have found that the Perth Stadium position was acceptable employment for the purpose of satisfaction of the preconditions for the application in s.120(1), I am permitted to have regard to the specific circumstances of Mr Clarke in exercising my discretion under s.120(2).

  1. It my view, it was not unreasonable for Mr Clarke to elect to continue to work for an organisation that he had provided services to for a period of almost seven years (albeit through BGIS rather than directly) rather than working for a new organisation. This is particularly the case given that he was offered a higher salary by ECU, that the ECU role provided new opportunities and that it did not appear to involve an expectation that Mr Clarke work one weekend per month, which Mr Clarke identified would interfere with his family responsibilities. Mr Clarke’s role with BGIS at ECU came to an end through no fault of Mr Clarke and there is no evidence to suggest that he would not have remained employed and enjoyed the benefit of his long service leave entitlement if the contract between ECU and BGIS had continued. In such circumstances, Mr Clarke should not be deprived from accessing his accrued long service leave because he chose not to be employed in a role which he regarded as inferior compared to the role he was offered by ECU.  

Conclusion 

  1. I have taken all of the circumstances of the case into account including that BGIS offered Mr Clarke the role of Estate Services Manager of Perth Stadium, and that while employed by BGIS, Mr Clarke accrued non-transferable entitlements totalling $41,318.81. I find that it is appropriate that the amount of redundancy pay that Mr Clarke is entitled to be paid be reduced on account of Mr Clarke being offered the Perth Stadium position and that BGIS be required to pay a redundancy amount which is equivalent to Mr Clarke’s long service entitlement of $12,751.72. This amount is approximately 53% of Mr Clarke’s redundancy entitlement under s.119(2).  

  1. Pursuant to s.120(3), $12,751.72 is the amount which is Mr Clarke’s entitlement under s.119. An order to this effect will accompany this decision.

DEPUTY PRESIDENT

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