Alliance Airlines Pty Limited [2026] FWC 1657

1 Fair Work Act 2009 s.120—Redundancy pay Alliance Airlines Pty Limited (C2026/2742) COMMISSIONER SIMPSON BRISBANE, 26 MAY 2026 Variation of redundancy pay [1] On 20 February 2026, Alliance Airlines Pty Limited (the Applicant) applied to the Fair Work Commission (the Commission) under s.120 of the Fair Work Act 2009 (Cth) (the Act) to the vary the amount of redundancy pay to be paid to Mr Brett Morley (Mr Morley). [2] The Applicant has sought an order that the amount of redundancy pay be reduced from 4 weeks of Mr Morley’s base rate of pay for his ordinary hours of work to zero (Order) on the grounds that the Applicant has found other acceptable employment for Mr Morley. [3] On 19 March 2026, Mr Morley advised my chambers that he objected to the Commission making the Order. [4] Considering Mr Morley’s objection to the Order sought, the matter was listed for a directions hearing on 27 March 2026. Following the proceeding, directions were issued for the filing of materials to enable the Application to be determined. [5] Both parties filed submissions and evidence in support of their respective positions. [6] On 4 May 2026, Mr Morley requested that the hearing be vacated and the matter be determined on the papers. The following day, the Applicant confirmed that it was content for the matter to proceed in this manner. On this basis, I vacated the listing and proceeded to determine the matter on the papers. Background [7] Before commencing employment with the Applicant, Mr Morley developed a ‘command development’ program and associated material in the course of his previous career. Some elements of that material originated externally and were not owned by Mr Morley outright. [8] Mr Morley commenced employment with the Applicant on 3 June 2024. At the time of his redundancy, he was employed as a Deputy Flight Training Manager. [2026] FWC 1657 DECISION -- 1 of 12 -- [2026] FWC 1657 2 [9] During 2025, the ‘command development’ program was brought to the Applicant informally for consideration. It was reviewed at a high level, but it was never formally notified, declared or adopted by the company as pre-existing intellectual property within any formal approval process. [10] In September 2025, communications to crew were paused while Mr Quintano reviewed the program. [11] In October 2025, Mr Quintano said that it would not continue in its current form and that he wanted the training material reviewed before any further courses were run. [12] In November 2025, the Applicant undertook a restructure of its Flight Training and Standards Departments to better align its training and operational requirement with fleet- specific arrangements, including the Fokker and E190 fleets. [13] As part of this restructure, Alliance advised Mr Morley that his substantive role would no longer by required in its existing form and that his position was at risk of redundancy. [14] During the Consultation process, the Applicant considered redeployment options for Mr Morley. As set out in the witness statement of Ms Deanna King, Head of Human Resources, dated 14 April 2026, the Applicant identified the role of Flight Training Manager as suitable alternative employment, having regard to: • Mr Morley’s skills, qualifications and experience; • the seniority and nature of the role; • the substantial alignment of duties with his existing position; and • the absence of any reduction in remuneration. [15] On 25 November 2025, Mr Morley was provided with a draft employment contract and position description for the Flight Training Manager role. The proposed contract contained the same Intellectual Property (IP) clause as contained in Mr Morley’s existing contract. [16] On the same day, Mr Morley wrote to Ms Kristina Farr making the following requests. “Hi Kristina, Please find enclosed the signed Position Description for Flight Training Manager. With Danny’s agreement, I have amended the wording under Training Records, Documentation and Record Keeping (second-last bullet) to include “as needed” to ensure the role remains workable in practice. Regarding the contract, Danny and I have discussed the following items, and he has confirmed his agreement to both: -- 2 of 12 -- [2026] FWC 1657 3 Reversion to simulator role (TRI) Could you please include a clause that provides the option to return to a TRI simulator role should I step down from, or leave, the Flight Training Manager role. This will help with continuity of instructor availability and retain experience within the training system, which will be increasingly important as the Fokker operation winds down. Intellectual Property – Command Development Program In relation to the Intellectual Property clause (currently clause 13), I would like the “command development” program expressly excluded. This material was developed independently by me prior to joining Alliance and was not created in the course of my employment. Danny and Mark have already decided that the program will not form part of Alliance’s training system now or in the future. Given that the underlying concepts are widely used across the industry and similar material exists externally, excluding it from the clause provides clarity and also helps protect Alliance from any potential claim that the company is asserting ownership over pre-existing material that is not unique to Alliance. Therefore, could I please request similar wording to the following: ‘The ‘command development’ program referred to in this agreement was developed by the Employee prior to joining the Company and is not considered material created in the course of employment. Ownership of this material remains with the Employee. The Company does not claim intellectual property remains with the Employee. The Company does not claim intellectual property rights over this program, and this agreement is not intended to limit the Employee’s ability, or the ability of any external organisation, to use similar and widely available leadership or command-development concepts.’ Once the revised Position Description is complete, could you please forward the updated wording to Chris as well, as he shares the same concerns regarding the “as needed” phrasing. Many thanks for your help.” [17] On 16 December 2025, Mr Morely sent a follow up email regarding the above correspondence. No response was received. [18] On 24 December 2025, Mr Morley wrote to Mr Paul Doherty to propose a revised IP clause which would directly carve out the ‘command development’ program from the operation of the rest of the clause: “To make it easy I have re written clause 13 (IP clause) with an amendment of 13.1A to cover my concerns re command development. The changed portion is in … italics. Many thanks for your consideration. I know you’re incredibly busy. -- 3 of 12 -- [2026] FWC 1657 4 Regards Brett. Revised Clause 13 – Intellectual Property (Proposed) 13. INTELLECTUAL PROPERTY 13.1 All rights, titles and interests to patents, trademarks, designs or other intellectual property (collectively ”intellectual property”) which have been or will be prepared, developed, or created by You within the scope of your employment with the Company or using the Company’s facilities, resources or confidential information or in relation to any of the Company’s contracts or projects or for any purpose related to the business of the Company, will be the sole property of the Company. You agree to assign and hereby do assign to the Company all rights, titles and interests to such patents, trademarks, designs or other intellectual property. 13.1A For the avoidance of doubt, clause 13.1 does not apply to the “command development” program or associated materials, which were developed independently by You prior to commencing employment with the Company and were not created in the course of your employment. Ownership of this material remains with You. The Company does not assert any intellectual property rights over this material, and nothing in this Contract is intended to limit Your ability, or the ability of any external organisation, to use similar and widely available leadership or command-development concepts. 13.2 You acknowledge that the Company owns the intellectual property as detailed in this Contract and You will not attack the validity of nor challenge the rights of the Company to such intellectual property. 13.3 You consent, for the Company’s benefit, to any and all acts or omissions (whether occurring before or after this consent is given) in relation to all Works made or to be made by You in the course of your employment which might otherwise infringe your Moral Rights in any or all of those Works (as those terms are defined by the Copyright Act 1968). You warrant that You have given this consent and undertaking genuinely, and without being subjected to any duress by the Company or any third party, and without relying on any representations other than those expressly set out in this Contract.” [19] On 26 December 2025, Mr Doherty replied and suggested a different approach: “Hi Brett As discussed quickly when I was trying to load on Wednesday, I tried to catch you on Monday but missed you. Quick answers: 1. IP side I think can be simplified as effectively it is either the previous Airlines or yours, but it can’t be both. I would say that a clause as simple as adding in to 13.1 -- 4 of 12 -- [2026] FWC 1657 5 ‘Notwithstanding the foregoing, if You incorporate or are requested to incorporate any pre-existing intellectual property, including proprietary materials, concepts, or content originating from another airline’s training program or any third party, You must: (a) disclose such pre-existing intellectual property to the Company in writing prior to its use; (b) confirm that there are the necessary rights or permissions to use such intellectual property; and (c) grant (or procure the grant of) to the Company a perpetual, irrevocable, royalty-free license to use, modify, and exploit such preexisting intellectual property for any purpose related to the Company’s business.” [20] On 26 December 2025, Mr Morley replied that the ‘command development’ material had never been formally notified, declared or adopted by the company as pre-existing intellectual property, had been brought in informally for consideration, and had been set aside rather than approved for use within the Applicant’s training system. Mr Morley further noted that he was not able to agree to a provision that would require him to retrospectively warrant rights, permissions, or grant a perpetual, irrevocable licence over material that was never formally disclosed, approved or embedded within the company’s systems, particularly where some elements originated externally and were not owned by him outright. [21] On 15 January 2026, Mr Morley was issued with a revised and final proposed employment contract for redeployment into the role of Flight Training Manager, scheduled to commence on 16 February 2026. The contract and updated position description were sent to his personal email address. [22] On 21 January 2026, the Manager of Flight Training and Standards, spoke to Mr Morley regarding that fact that the contract had not yet been signed. Mr Morley advised that he had not received the contract and had been on annual leave. [23] On 22 January 2026, the proposed employment contract and position description were resent to his work email address. On this date, Mr Morley advised the Applicant that he believed there were ongoing discussion with the Chief Operating Officer regarding the IP clause contained in the contract. [24] On 23 January 2026, Ms King emailed Mr Morley confirming the Applicant’s agreement to extend the timeframe for review and execution of the contract to 27 January 2026. Ms King acknowledged Mr Morley’s query regarding the IP clause and advised that, while the COO had been consulted while on leave, any contract variations were a matter for HR. Ms King further confirmed that: • The IP clause is a standard provision included in Alliance employment contracts; • the clause is intended to protect work created by employees in the course of their paid employment; -- 5 of 12 -- [2026] FWC 1657 6 • the clause was unchanged from the IP clause in the employee’s original contract signed at commencement; and • acceptance of the IP clause in its current form was a requirement of employment. [25] On the same day Mr Morley replied: “Hi Deanna, Thank you for confirming the extension to Tuesday 27 January, I appreciate that. I’ve now received the contract and associated documents and will review them carefully. By way of context, there are two matters I need to work through as part of that review: • IP clause – I understand your position that the clause reflects Alliance’s standard wording and mirrors my existing contract. My earlier discussion with Paul was to clarify how that wording applies to intellectual property developed prior to my commencement, particularly in relation to the command development material. I’ll reflect further on this in light of your comments. • Position Description – the PD attached to the contract differs from the version I signed on 25 November, which included a handwritten amendment (“as needed”) to ensure the responsibilities were workable in practice. I’ll need to reconcile that difference as part of my review. I’ll come back to you once I’ve completed that review and considered how best to proceed. Thanks again. Regards, Brett.” [26] On 4 February 2026, Mr Morley advised that he had not accepted the proposed employment contract: “Hi Deanna, Thank you for your email. To be clear, I have not resigned, and I have not accepted the proposed employment contract. I have also not declined redeployment. My understanding is that my current role of Deputy Flight Training Manager no longer exists in the new structure. I remain employed under my current contract unless and until my employment is otherwise lawfully brought to an end. -- 6 of 12 -- [2026] FWC 1657 7 I do not agree with the characterisation that non-acceptance of a proposed new contract constitutes a refusal of reasonable redeployment, nor that it would remove redundancy notice or entitlements. If the company intends to proceed on that basis, please set out the company’s position and reasons in writing. I am available to meet once that has been provided. Regards Brett.” [27] On the same date, the Head of HR wrote to the employee confirming that: • He had not accepted the redeployment contract for the role of Flight Training Manager; • his substantive role of Deputy Flight Manager no longer existed in the new organisational structure; • by declining the new employment contract, the employee was declining an offer of redeployment; and • as a result, declining the offer of redeployment this would result in his employment ending due to redundancy; and • the Applicant wished to provide him with a further opportunity to reconsider his decision. [28] Mr Morley was also advised that the redeployment role constituted reasonable alternative employment, including no reduction in remuneration and duties aligned to his skills and experience. Accordingly, no redundancy notice or redundancy pay would be applicable. [29] Later the same day, Mr Morley was issued with a formal redundancy and redeployment letter outlining the available options. [30] On 5 February 2026, a meeting was held with Mr Morley, the Head of HR, and the General Manager of Flight Operations to discuss the redundancy outcome, noting that Mr Morley has declined the redeployment role on the basis that he has not signed the employment contract issued to him. Relevant Statutory Provisions [31] Section 120 of the Act states that: “120 Variation of redundancy pay for other employment or incapacity to pay (1) This section applies if: -- 7 of 12 -- [2026] FWC 1657 8 (a) An employee is entitled to be paid an amount of redundancy pay by the employer because of section119; 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 Fair Work Commission may determined that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the Fair Work Commission 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.” [32] Section 119 of the Act states that: “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: Section 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: -- 8 of 12 -- [2026] FWC 1657 9 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 Submissions [33] The Applicant submits that, as established by Ms King’s evidence, the Flight Training Manager role was a position which is closely aligned with Mr Morley’s skills and experience, at an appropriate level of seniority, and offered on the same remuneration and terms. [34] The Applicant submits that they engaged in genuine consultation and afforded Mr Morley multiple opportunities to consider and accept the role. On that basis, the Applicant submits that the redeployment offer was reasonable in all circumstances and constituted suitable alternative employment within the meaning of s.120 of the Act and that Mr Morley refused it by not accepting the proposed contract. [35] Mr Morley submits that the role was not suitable alternative employment. [36] Mr Morley asserts that the redeployment was not a mere continuation of his existing employment as it required him to enter a new contract commencing on 16 February 2026. Therefore, Mr Morley submits that the question of acceptability must be assessed by reference to the actual contract offered, not by abstract comparison between the old and new roles. [37] Mr Morley notes that the new contract carried an unresolved and material IP issue concerning pre-employment ‘command development’ material, including material containing external elements that he did not own. Mr Morley also raised an issue about the workability of the position description. [38] Mr Morley submits that a reasonable person in his position would treat that as a material contractual risk as signing the new contract in the form it was presented would not simply have continued the existing IP position. Mr Morley asserts that it would have substantially elevated the legal risk by reaffirming the Applicant’s ability to assert ownership and broad licence rights over pre-employment ‘command development’ material which contained external elements, had never been properly notified or adopted as the Applicant’s IP, and had already been set aside as not forming part of its training system in 2025. -- 9 of 12 -- [2026] FWC 1657 10 [39] Mr Morley submits that a reasonable person in his position would regard the step-change in risk created by the insistence on a new contract without the confined carve-out being accepted, as rendering the employment offer objectively unacceptable. [40] Mr Morely submits that the IP issue was substantive and was not a drafting preference or a device to avoid redeployment. [41] Mr Morley submits that he did not refuse redeployment as he remained employed, asked that the identified issues be clarified, and disputed the Applicant’s attempt to treat non- acceptance of the new contract as refusal of redeployment. Mr Morley asserts that if he had intended to not accept the Flight Training Manager role at all, there would have been no reason for him to sign the Flight Training Manager position description with the narrow ‘as needed’ amendment in November 2025, and doing so is consistent with an intention to take up the role, subject only to resolving the two identified issues. He contends that the amendments were modest and did not alter the substance of the role. [42] The Applicant relies on the findings in Civmec Construction and Engineering Pty Ltd.1 In Civmec, the Commission reduced redundancy pay to nil where the employee was offered alternative employment of a similar nature, with comparable duties and remuneration, notwithstanding a change in work location. The Commission was satisfied that the role was objectively acceptable and that the employee’s refusal did not prevent the exercise of discretion under s.120 of the Act. [43] The Applicant submits that the present case is more compelling, as unlike Civmec, Mr Morley was offered a role at the same location, with no reduction in remuneration, and with duties substantially aligned to his existing role. The Applicant asserts that, on any objective assessment, the alternative employment obtained by the Applicant was at least as acceptable as that considered in Civmec. [44] The Applicant notes that similarly, in Mater Misericordiae Ltd t/a Mater v Tyler,2 redundancy was reduced to zero where the employer offered an alternative role that was within the employee’s skills and experience, carried equivalent seniority, and involved no material change to pay, hours or conditions. In Mater, the Commission rejected the employee’s subjective reasons for refusal and held that the alternative employment was objectively acceptable. [45] The Applicant submits that in Mr Morley’s case, the Flight Training Manager role was a position within Alliance, aligned with his qualifications and experience, and offered on the same remuneration and conditions. As in Mater, the evidence does not establish any objective feature rendering the role unacceptable. [46] The Applicant further notes that in Eagers Automotive Ltd v Varcoe,3 the Commissioner reduced redundancy pay to four weeks notwithstanding the employee’s refusal of redeployment, emphasising that rejection by an employee does not determine whether alternative employment is acceptable for the purposes of s.120 of the Act. Minor changes, including modest increases in travel time, were held not to render the employment unacceptable. -- 10 of 12 -- [2026] FWC 1657 11 [47] The Applicant submits that in contrast, Mr Morley’s proposed redeployment involved no increase in travel, no loss of seniority, and no diminution of pay or conditions, placing this matter well within the category of cases where redundancy pay has been reduced to zero. [48] The Applicant asserts that the principles articulated in NUW v Tontine Fibres,4 also support the exercise of discretion in this case. In NUW the Full Bench confirmed that where suitable alternative employment is offered and reasonably refused, the Commission may properly reduce redundancy pay. The Applicant submits that the Flight Training Manager role constituted suitable alternative employment and that Mr Morley’s refusal does not preclude the reduction sought. [49] The Applicant submits that Mr Morley’s substantive role was rendered redundant as part of a genuine restructure, that prior to termination it identified and offered him suitable alternative employment following meaningful consultation, and that Mr Morley declined that role. In those circumstances and having regard to the authorities outlined above, the Applicant submits that it is appropriate for the Commission to exercise its discretion under s.120 of the Act to reduce Mr Morley’s redundancy pay entitlement to zero. [50] Mr Morley submits that the reliance on the similarity of the roles, the absence of any reduction in remuneration, and his skills and experience do not resolve the case. [51] Mr Morely submits that the real question is whether the employment actually offered, on the contractual terms actually insisted upon, was objectively acceptable. [52] Mr Morley submits that it was not objectively acceptable because he was required to enter a new contract while a material IP issue remained unresolved, and while a specific position-description issue remained unaddressed. [53] Mr Morley notes that his submissions demonstrate that he sought clarification, proposed a confined solution, and remained willing to continue employment if those issues were addressed, and that this, therefore, does not show a refusal of work. [54] Mr Morley submits that in these circumstances, the Applicant has not established that it obtained other acceptable employment for him within the meaning of s.120 and therefore, the application should be dismissed. Consideration [55] It appears to be common ground that the redeployment role offered included no reduction in remuneration, working at the same location, and the duties aligned to the Respondent’s skills and experience. The Applicant engaged in genuine consultation with Mr Morley and afforded him several opportunities to consider and accept the role. [56] Mr Morley’s reluctance to accept the new contract for the offered position related to what he called an unresolved and material IP issue concerning the pre-employment ‘command development’ material. From the submissions it also seems not in dispute that the relevant -- 11 of 12 -- [2026] FWC 1657 12 clause in the new contract offered was identical to the clause in the contract that Mr Morley accepted when he initially commenced with the Applicant. [57] On that basis, the offer did not change the status quo on that issue prior to his existing position becoming redundant. As that is the case I am not satisfied it is a basis to render what is in all other respects, other acceptable employment, not acceptable employment. [58] As that is the case, I am satisfied the Applicant did obtain other acceptable employment, and the offer of that employment was not accepted. Conclusion [59] In the circumstances I have determined it is appropriate to exercise power under s.120 of the Act to reduce the redundancy payment otherwise to be paid by Alliance Airlines Pty Limited to Mr Morley to zero. An order will be issued separately and concurrently with this decision to that effect. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR799827> 1 [2026] FWC 599. 2 [2025] FWC 1396. 3 [2021] FWC 6602. 4 [2007] AIRCFB 1016. -- 12 of 12 --