Association of Professional Engineers, Scientists and Managers, Australia v Concentrix Services Pty Ltd

[2024] FWC 1774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia

Concentrix Services Pty Ltd

(B2024/849)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 JULY 2024

Proposed protected action ballot of employees of Concentrix Services Pty Ltd

This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Concentrix Services Pty Ltd (Concentrix or Employer).

On 5 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Niki Baras, Union Organiser, setting out the steps taken by the APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 16 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776751.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has considered an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for a protected action ballot order concerning employees of Concentrix Services Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Commission received notification that Concentrix did not object to the application, leading to a determination on the papers without a hearing. The decision addresses whether the requirements for a ballot order under section 443(1) of the Act have been met, given APESMA's efforts in bargaining and its genuine attempt to reach an agreement with the employer.

The key legal issues before the Commission were whether APESMA had genuinely attempted to reach an agreement with Concentrix and if all statutory requirements for a ballot order had been satisfied. The Commission examined the declaration provided by Niki Baras, a Union Organiser, which outlined the bargaining process and APESMA's efforts. It was necessary to establish that a notification period existed and that all conditions for a ballot under section 443(1) of the Act were fulfilled. The Commission determined that these conditions were met based on the evidence presented.

The Deputy President concluded that APESMA had genuinely attempted to reach an agreement with Concentrix and that all requirements for a ballot order were satisfied. Consequently, the Commission granted the application for a protected action ballot order. The ballot is to be conducted by the Australian Electoral Commission, with voting to close on 16 August 2024, which is 30 working days from the order date as required by the Electoral Commission. The Commission also assigned the matter to another Member for a compulsory conciliation conference under section 448A of the Act, which will involve all bargaining representatives of the proposed enterprise agreement.

The Commission issued an order in PR776751, and another order will be issued in PR776752 to require the attendance of all bargaining representatives at the conciliation conference. Directions will likely follow to ensure the parties are prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established