Under the Fair Work Act 2009 (Cth), employers may apply to the Fair Work Commission (FWC) to reduce redundancy pay if they have secured “other acceptable employment” for the employee. Determining whether the alternative role is “acceptable” involves assessing various factors, such as the nature of the work, pay, seniority, working hours, travel time, and location—including any remote or in-office requirements.
In the case of Australian Cabling Solutions Pty Ltd T/A Australian Cabling Solutions [2024] FWC 2591, the FWC examined whether an alternate position offered to an employee constituted “other acceptable employment.”
The Case
The employer, Australian Cabling Solutions, provided electrical and cabling services on projects across Queensland and New South Wales. In late 2021, the employee was engaged in electrical work at the Tweed Valley Hospital in Northern New South Wales, located 13km from his residence.
When the hospital project ended, the employer offered the employee redeployment to the Wacol Correctional Facility in Queensland, which was 101km from his residence. The employee declined the redeployment due to the significant increase in commuting time. Consequently, the employer made the employee’s position redundant, claiming no other work was available.
The employer then sought to reduce the employee’s redundancy pay, arguing the alternative role met the criteria for “other acceptable employment.”
FWC Decision
The FWC rejected the employer’s application, finding that the position at the Wacol Correctional Facility was not suitable for the following reasons:
- Increased Travel Time
- The new role would have required the employee to commute approximately 2 hours and 40 minutes daily by train or 1 hour and 16 minutes daily by car.
- This travel time was a substantial increase from the employee’s previous 13km commute to Tweed Valley Hospital.
- Nature of Employment
- Although the employer could assign employees to different locations, the employee had only worked at a single site during his tenure.
- The employee’s role was not one that typically required frequent travel between locations.
The FWC concluded that the redeployment involved a significant and detrimental change to the employee’s commute, making the role unsuitable. As such, it refused to reduce the employee’s redundancy pay.
Lessons for Employers
This case underscores the importance of thoroughly evaluating alternative roles before seeking to reduce redundancy pay. Employers should consider the following:
- Travel Time and Location
Alternative roles must not impose unreasonable travel requirements compared to the employee’s previous position. - Nature of Work
The offered role should align with the employee’s usual work patterns and expectations unless the role inherently requires travel. - Reasonableness of the Offer
Employers should ensure any redeployment options are reasonable and appropriate for the employee’s circumstances.
If an employer intends to apply to the FWC to vary redundancy pay, it must provide strong evidence that the alternative role meets the criteria for “other acceptable employment.”
Disclaimer: This article provides general information only and does not constitute legal advice. Workplace Law is not liable for any reliance on this content. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
