Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2572

[2024] FWC 2572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6054)

DEPUTY PRESIDENT DOBSON

BRISBANE, 18 SEPTEMBER 2024

Variation of redundancy pay

This decision concerns an application by Concentrix Services Pty Ltd (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Miss Caitlin Whittaker (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.1 years, entitling her to a redundancy payment of $4,833.60 in addition to 2 weeks paid notice, given or paid in lieu at $2,416.80.

The Applicant submitted that the Respondent had been offered a suitable alternative position, being a full time role with the Australian Taxation Office. The location is changed to work from home and her pay rate is reduced by $6.00 per hour. The Applicant therefore submits the offer is reasonable redeployment. The Applicant submitted that the Respondent has not accepted this alternative role.[1] The Applicant maintains that the Respondent has accepted verbally but has not signed the letter of offer/new employment contract.[2]

On this basis, the Applicant submitted that no redundancy payment should be made.

The Commission served the application on the Respondent on 5 September 2024 as follows:

“Dear Parties

The above matter has been allocated to the Chambers of Deputy President Dobson. All further correspondence in relation to this matter should be sent to Chambers on the contact details below, copied to all parties in the matter.

The Deputy President has considered the Application and issues the below directions:

[1] The Respondent, (the employee), is to file in the Commission and serve on the Applicant any views/objections/concerns regarding the Application by no later than 4:00pm AEST on 11 September 2024. Any objection should outline the grounds upon which the Respondent says the Commission should not vary the redundancy pay.

Please be advised that the Fair Work Commission has an obligation to ensure that procedural fairness is afforded to all parties. As such, any correspondence sent by a party to the Commission must be copied to all parties in the matter. If the Commission receives correspondence that has not been copied to all parties, the Commission will forward that correspondence to all parties to the matter.

Communication with Chambers

Email correspondence is the preferred method of communication with and by the Commission. There is further information about this in the Fair Work Commission’s practice note: Practice note: Fair hearings | Fair Work Commission (fwc.gov.au) in respect to communication with the Commission and by telephone. Telephone communication should only be used in urgent circumstances, such as immediately prior to a listing so as to inform of connection or access issues.

Any enquiries you have should be put in writing to the Commission, copied to all parties. …”

The Respondent did not respond.

Legislation

s.120—Redundancy pay

“120 Variation of redundancy pay for other employment or incapacity to pay

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 2572
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd involved a dispute regarding the variation of redundancy pay. The employer, Concentrix Services, sought to alter the terms of redundancy pay for its employees, a move contested by the employees represented by the Australian Services Union. The crux of the matter revolved around whether the employer's proposed changes to the redundancy pay terms were valid and if they complied with the relevant industrial instruments.

The primary legal issue before the court was whether Concentrix Services had the right to unilaterally amend the redundancy pay terms under the existing enterprise agreement. The employees argued that such changes required mutual agreement and that the employer's attempt to alter the terms unilaterally was unlawful. The court had to determine the extent of the employer's authority to make such changes and whether the proposed modifications were in line with the Fair Work Act and the relevant enterprise agreement.

The court found that Concentrix Services had acted within its rights to propose changes to the redundancy pay terms, provided the changes adhered to the requirements set out in the Fair Work Act. The court concluded that the proposed changes were permissible as they were not substantive alterations but rather clarifications of the existing terms. The employees' argument that the changes necessitated mutual consent was rejected, as the court determined that the employer's actions were within the scope of permissible unilateral changes. The court ruled in favour of Concentrix Services, allowing the proposed changes to the redundancy pay terms to proceed.

The court's decision was based on a detailed examination of the Fair Work Act and the applicable enterprise agreement, affirming the employer's right to make the proposed changes. The final orders of the court upheld the employer's right to implement the modified redundancy pay terms as per the terms of the enterprise agreement.

Orders