MLG OZ Limited

[2025] FWC 1348

[2025] FWC 1348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

MLG OZ Limited

(C2025/2412)

COMMISSIONER SCHNEIDER PERTH, 21 MAY 2025

Variation of redundancy pay

1. This decision concerns an application made by MLG OZ Limited (MLG) to reduce the amount of redundancy pay to which an employee, Ms Ivy Jane Dewitt (Ms Dewitt), is entitled under section 119 of the Fair Work Act 2009 (Cth) (the Act).

1. The parties have provided written materials outlining their respective positions.

1. Having considered the evidence and submissions, I have determined that the application will be granted, and there will be a reduction in the redundancy payment to which Ms Dewitt is entitled to by 75%.  

1. My reasons are as follows. 

Background & Submissions 

1. The parties were provided with the opportunity to provide written submissions in relation to the application and the matter was then determined on the papers.

1. MLG confirmed the following in relation to Ms Dewitt’s employment:

·   Ms Dewitt was employed for 1 year but less than 2 years as a Site Administrator on a Fly In Fly Out (FIFO) basis.

·   Ms Dewitt was originally employed on the Swiftsure Project in regional Western Australia.

·   Following the closure of that project, MLG offered to redeploy Ms Dewitt to the Evolution Haulage Project also in regional Western Australia.

1. MLG submitted that the position on the Evolution Haulage Project was also as a Site Administrator and Ms Dewitt has the required skill set and competency to complete the work as required.

1. There were no changes to Ms Dewitt’s salary and Ms Dewitt was still employed on a FIFO basis out of Perth. However, the roster, whilst still being the same roster, required a change of travel days to and from site. 

1. Ms Dewitt opposed the application on the basis that the redeployment to the Evolution Haulage Project had a change of fly in and fly out days. This meant that Ms Dewitt would not be able to spend time with her partner who would be on an opposing work roster. Ms Dewitt submitted that this redeployment option was not suitable as it would damage her relationship with her partner.

Legislation 

1. The relevant provision of the Act is set out below:

“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. It has generally been accepted by the Commission that the following factors should be considered in relation to section 120(b)(i):

·   The nature of the work;

·   The comparability of the work with that performed in the current role;

·   Pay levels;

·   Hours of work;

·   Seniority;

·   Fringe benefits;

·   Workload and speed;

·   Job security;

·   Whether the employee will have continuity of service in the new role;

·   Location and/or the need to relocate;

·   Travel and/or the cost of travel that is additional to that relevant to the original employment;

·   Carer’s responsibilities; and

·   Family circumstances.[1]

1. In relation to the factors that are outlined above, the only matter which appears to be controversial or in contention is in relation to Ms Dewitt’s family circumstances.

1. The change in rostered fly in fly out days would mean that Ms Dewitt would not be able to spend any significant portion of time with her partner. This is no doubt a serious inconvenience for Ms Dewitt and her partner, however it is only one factor that the Commission must consider when considering an order to reduce an employee’s redundancy payment. Ms Dewitt has not provided any other substantive submissions or evidence as to why the proposed position was not a suitable redeployment opportunity.

1. The other factors that are outlined above do not appear to be in dispute in this application, as MLG have been able to source an internal redeployment opportunity which is still on a FIFO basis, with the same remuneration, duties, seniority, and permanency.

1. Having considered all of the factors outlined above and the submissions provided by the parties in relation to this application, I have determined that the position offered to Ms Dewitt by MLG was acceptable employment for the purposes of section 120(1)(b)(i) of the Act.  

Conclusion

1. I note that MLG was seeking the Commission to reduce the redundancy payment to which Ms Dewitt is entitled to nil.

1. In the circumstances, I am satisfied that the position offered by the Applicant is other

acceptable employment but, I am not satisfied the redundancy amount owing to the Respondent
should be reduced to nil.

1. I have considered the submissions and factors outlined above and I have determined that, in this instance, the redundancy payable to Ms Dewitt will be reduced by 75% to 1 week.  

1. The application is granted and an Order to that effect will be issued.  [2]

COMMISSIONER

[1] [2019] FWC 756, [24]; [2016] FWC 2880, [11].

[2] PR787337.

Printed by authority of the Commonwealth Government Printer

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