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

[2024] FWC 2699

[2024] FWC 2699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.424—Industrial action

Concentrix Services Pty Ltd
v

Association of Professional Engineers, Scientists and Managers, Australia, The

(B2024/1265)

COMMISSIONER HUNT BRISBANE, 27 SEPTEMBER 2024

Application for an order to suspend or terminate protected industrial action – endangering life etc.

1. On 25 September 2024, Concentrix Services Pty Ltd (Concentrix) made an application pursuant to s.424 of the Fair Work Act 2009 (the Act) to terminate protected industrial action on the basis that the protected industrial action is threatened, impending or probable and if taken would endanger the life, the personal safety or health, or the welfare, of the population or part of it.

1. On 20 September 2024, the Association of Professional Engineers, Scientists and Managers Australia (APESMA) provided a notice of protected industrial action to Concentrix pursuant to s.414 of the Act, with the protected industrial action to commence at 7:00am on 26 September 2024. The protected action notified is reproduced below:

1.Indefinite action in the form of employees taking their meal break for a continuous period of one (1) hour, at a time they determine.

2.An indefinite ban on attending or participating in any team or all-staff meetings.

3.An indefinite ban on responding to any emails or chat groups.

4.Indefinite action in the form of answering incoming video calls on Skype after 2 minutes and 30 seconds and 3rd prompt (3/3) limits.

5.Indefinite action in the form of interrupting or stopping work to provide an authorised Professionals Australia statement to clients, stakeholders, users or customers.

6.Indefinite actions in the form of interrupting or stopping work to provide an authorised Professionals Australia statement in emails, auto-reply messages and voicemail.

7.Indefinite action in the form of employees extending their welfare (long call break) to 15 minutes.

8.Indefinite action in the form of employees taking their 15-minute scheduled break at a time or times they determine.

9.Indefinite action in the form of recording calls in OMNI as ‘testing’ only.

10.An indefinite ban on the recording of call outcomes in OMNI (or any other electronic database).

11.An indefinite ban on attending or participating in any testing of IT/software updates.

12.An indefinite ban on performing duties or tasks related to the induction of new staff.

13.An indefinite ban on the completion of the feedback form (however titled) when a call is terminated due to breach of terms of service.

1. Concentrix is engaged to provide the National Relay Service for people who are deaf or find it hard to hear or speak to hearing people on the phone. The NRS is an initiative of the Department of Infrastructure, Transport, Regional Development, Communications and the Arts.

1. Concentrix employs Relay Officers who sign and understand Auslan. A portion of the calls (and text messages) made by deaf or hard of hearing people to the National Relay Service are emergency calls. A Relay Officer then provides the relevant interpretation between the deaf person and emergency services to assist in the emergency. It is Concentrix’s contention that this service can literally be a lifeline to a deaf or hard of hearing person in an emergency.

1. Shortly after receiving the notice of protected industrial action, Concentrix communicated with APESMA, voicing its concerns in respect of nominated protected industrial action categories 1,3,4,5,6,7,8 and 13. APESMA subsequently notified Concentrix of its withdrawal of category 1. Concentrix still considers that if the protected industrial action notified in categories 3,4,5,6,7,8 and 13 is taken, it would endanger the life, the personal safety or health, or the welfare of the population or part of it.

1. Section 424 of the Act is as follows:

“424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) [FWC may make order on own initiative or application]

The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i)a bargaining representative for the agreement;

(ii)the Minister;

(iia)if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib)if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii)a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) [Interim order continues until application is dismissed]

An interim order continues in operation until the application is determined.”

1. The application was allocated to my chambers at 4:36pm on 25 September 2024. At 5:32pm on the same day I issued the following directions:

·The parties to participate in a conference by Microsoft Teams at 9:00am on 26 September 2024; and

·Parties to file evidence and submissions in support of their case by 5:00pm on 26 September 2024; and

·The matter to be heard in-person in Brisbane at 11:00am on 27 September 2024, with leave granted to interstate parties to appear by Microsoft Teams.

1. At the conference on 26 September 2024, the following people appeared:

For Concentrix:          Mr Troy Spence of Counsel

Mr Josh Dunn, Solicitor of Franklin Athanasellis Cullen
Ms Judith Fletcher, Director People Solutions ANZ

For APESMA:           Mr Scott Crawford, Director - Victoria

Ms Margaret Buchanan, Director Industrial Strategy and Workplace Advice and Support

1. Concentrix advised that it was in a position to file its evidence and submissions by 5:00pm that day and was prepared for the Hearing at 11:00am on 27 September 2024.

1. APESMA advised that it was not in a position to survey its members and obtain evidence of members by 5:00pm on 26 September 2024, nor participate in the Hearing on 27 September 2024 at such short notice. Many of its members who work at Concentrix also provide Auslan services in the community, and some of them were not at work at Concentrix on 26 September 2024. Many APESMA members work less than full-time hours at Concentrix and would therefore not readily be available to provide evidence in the form of a witness statement in the time available.

1. After indicating that I could allow APESMA until early morning of 27 September 2024 to file evidence, APESMA still pressed that it would not be afforded procedural fairness given the circumstances of its members and their availability.

1. I informed the parties that I was already listed on Monday, 30 September 2024, and unable to hear and determine the application on that date, but would be available on Saturday, 28 September 2024 or Sunday, 29 September 2024 to hear the application. Monday, 30 September 2024 is the last day within the five-day window provided for in s.424(3). APESMA advised its unavailability over the weekend on account of its membership and their other responsibilities.

1. APESMA pressed the Commission to find that the Commission is unable to determine the application within 5 days after it was made and submitted that the Commission must then make an interim order suspending the protected industrial action to which the application relates until the application is determined.

1. Concentrix did not object to the APESMA submission, but remained ready, willing and able to file material and participate in the Hearing on 27 September 2024 if that was the Commission’s decision.

1. APESMA advised that if the Commission were inclined to make an interim order, it would immediately inform its members of the Commission’s intention and request members not take protected industrial action until such time as the Commission made the interim order. Concentrix thanked APESMA for its position.

Consideration

1. Having regard to the constitution of at least part of the APESMA membership employed at Concentrix performing work for the National Relay Service, only performing work on a part-time basis and having other responsibilities in the deaf community, I am satisfied that it would be appropriate to afford APESMA additional time to prepare for a Hearing of this application.

1. I accept that due to the circumstances described above, APESMA would not be able to participate in a Hearing of the application within the five-day window provided for in s.424(3) of the Act. Accordingly, the Commission is unable to determine the application within that period.

Conclusion

1. In these circumstances, s.424(4) of the Act directs that an interim order suspending the protected industrial action to which the application relates must be made. This is a course of action adopted by APESMA and not objected to by Concentrix.

1. An interim order suspending the protected industrial action until the application is determined will issue accordingly.

COMMISSIONER

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