Two former employees of Creative Image Landscapes Pty Ltd (CIL) retain their full redundancy entitlements, being 14 weeks’ pay of $28,280 and 4 weeks’ pay of $6,020, after the Fair Work Commission rejected the company’s argument that jobs it arranged for them with another business were acceptable.
CIL applied under s 120(2) of the Fair Work Act 2009 to reduce both entitlements to nil. One worker had nine years of service with the company, the other one year. Both took up work with APS Drainage and Civil Pty Ltd (APS) after being made redundant.
Section 120 applies where an employee is entitled to redundancy pay under s 119 and the employer “obtains other acceptable employment” for the employee. Where those elements are satisfied, the Commission has a discretion to determine that redundancy pay “is reduced to a specified amount (which may be nil)”.
that it was “the strong moving force” behind the offers APS made to the two men, and that the new employment was acceptable because its terms were substantially similar to those at CIL. It pointed to a greater ability to work overtime, the closeness of APS to the longer-serving worker’s home, and greater stability because the work was government work.
that the APS offers did not flow from CIL’s actions, and that the new employment was not acceptable in any event because it carried a lower rate of pay and other detriments, including starting tenure with a new employer from scratch, having to pay for certain tools and reduced seniority.
that CIL did obtain the employment, preferring the detailed evidence of the company’s director to the content of a letter from a director of APS, who did not give evidence or attend the hearing. The two businesses had no agreement that offers would be made, but the Deputy President held that this did not prevent CIL from having obtained the work, finding that the CIL director “was instrumental in the offers of employment that APS made to both men”. The employment was nonetheless not objectively acceptable.
The longer-serving worker was paid $50.50 an hour at CIL and $45.00 an hour at APS. As the worker pointed out, and as the decision records, the difference amounts to $11,440 a year based on a 40-hour week.
“I do not accept that a $5.00 drop in the hourly rate of pay represents a slight decrease in remuneration.” Deputy President Colman, [2026] FWC 3546
The Deputy President was not satisfied the evidence showed greater overtime at APS, and said that even if it did, the value would not be substantial “because the additional earnings are only possible through additional work”. The worker’s APS summary of conditions listed his primary location as “onsite as required of each project”, so the proximity of the APS site to his home was of relatively little benefit.
The second worker was paid $37.62 an hour at CIL. He was offered a permanent role at APS, which he declined, having already commenced a tattoo apprenticeship two days a week, and was instead engaged as a casual landscaper on a base rate of $33.40 an hour plus a casual loading of $8.35, or $41.75 an hour. The Deputy President agreed the loading should be left out of the comparison because it compensates for the absence of paid leave.
CIL produced no direct evidence of the permanent offer actually made. The Deputy President accepted the worker’s evidence that the offer was at the award rate and was a labouring role, which indicated the role was likely that of a landscape labourer at the CW1 classification under the Building and Construction General On-Site Award 2020, below the CW3 level cited in his casual contract. Even if the CW3 rate had been offered, it was over $4.00 an hour below his CIL rate, which over a year of full-time work would have left him earning nearly $8,000 less.
The application was dismissed on 16 September 2026, two days after the hearing in Melbourne. The Deputy President found the alternative employment “appears to have been welcomed and appreciated” by both men, but concluded that the discretion under s 120 had not been enlivened.
At a glance
- Parties: Creative Image Landscapes Pty Ltd and two former employees
- Citation: [2026] FWC 3546, Deputy President Colman, Melbourne
- Section: Fair Work Act 2009, s 120(2), with entitlements arising under s 119
- Outcome: Application dismissed. Entitlements of 14 weeks ($28,280) and 4 weeks ($6,020) stand
- Relevance: Employers seeking to reduce redundancy pay by placing redundant employees with another business
The decision records that acceptance of a new job does not decide the question, because s 120 “does not refer to an employer obtaining other employment that is accepted”. The assessment is an objective one, comparing the terms of the new role with the redundant position, and in this case excluding the casual loading from the comparison of base rates.
Source: [2026] FWC 3546
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