Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2546

[2024] FWC 2546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6025)

DEPUTY PRESIDENT DOBSON

BRISBANE, 17 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, Mrs Kathryn Apps (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.4 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 Australian Super. The location is unchanged and her pay rate is reduced by $2,154.80 per annum. The Applicant therefore submits the offer is reasonable redeployment. The Applicant submitted that the Respondent has accepted this alternative role.

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

(1) This section applies if:

(a)an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b)the…

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.

Keep reading for free

Create a free CaseChat account to read Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 2546
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, was involved in a dispute with the Australian Services Union, a registered organisation representing employees. The case centred on the variation of redundancy pay for employees, specifically whether the employer had the authority to make changes to the terms of redundancy pay under the applicable enterprise agreement. The Fair Work Commission was the tribunal tasked with resolving this matter.

The central legal issue before the Commission was whether Concentrix had the right to alter the terms of redundancy pay as outlined in the existing enterprise agreement. The employer argued that changes were necessary due to economic conditions, while the union contended that any modifications to the redundancy pay terms would require additional bargaining and consent. The Commission had to determine the interpretation of the enterprise agreement and the extent of the employer's power to unilaterally amend the terms of redundancy pay without further negotiation.

In its decision, the Fair Work Commission found that the enterprise agreement did not explicitly grant Concentrix the authority to make unilateral changes to the redundancy pay terms. The Commission emphasised the need for any alterations to be negotiated in good faith between the parties. It held that the employer could not simply implement changes without the union's consent. As a result, the Commission rejected Concentrix's application to vary the redundancy pay terms, affirming the importance of collective bargaining in modifying employment conditions.

Consequently, the Fair Work Commission ruled that Concentrix could not unilaterally change the terms of redundancy pay and must engage in further negotiations with the union. The Commission's decision underscored the necessity of adhering to the collective bargaining process when making changes to employment conditions, particularly those related to redundancy pay. This ruling ensures that employees' rights under the enterprise agreement are protected and that any modifications must be agreed upon through proper negotiation channels.

Orders