s.234 - Application for an intractable bargaining declaration

Association of Professional Engineers, Scientists and Managers, Australia

Application for an intractable bargaining declaration

• [1] On 28 March 2025, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made an application to the Fair Work Commission (the Commission) for an intractable bargaining declaration pursuant to s.234 of the Fair Work Act 2009 (the Act). The Respondent to the application is Concentrix Pty Ltd (the Respondent). The application has been made in relation to the proposed Concentrix Auslan Interpreter Enterprise Agreement 2025 (the Proposed Agreement).

• [2] The matter was listed for a hearing on 15 April 2025, and Directions were issued requiring the Respondent to notify my chambers whether it opposed the application. On 15 April 2025, the Respondent informed my chambers that it did not oppose APESMA's application and consented to the making of an intractable bargaining declaration. On that basis, the hearing was vacated.

• [3] Section 235 of the Act sets out when the Commission may make an intractable bargaining declaration. It states:

"235 When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the determination is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement - the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement - the day that the authorisation first comes into operation; or

(b) otherwise - the notification time for the proposed agreement."

• [4] I now turn to consider the matters in s.235 of the Act.

Has an application for the declaration been made? - s.235(1)(a)

• [5] Section 234(1) of the Act states that a bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the Commission for an intractable bargaining declaration under s.235 of the Act. APESMA is an employee organisation that is a bargaining representative for the Proposed Agreement. In accordance with s.176(1) of the Act, it is therefore a bargaining representative for the purposes of s.234(1) and has standing to make the application which is an application for the purposes of s.235(1)(a). I therefore find that a valid application has been made under s.235(1)(a).

Is it after the end of the minimum bargaining period? - s.235(1)(c)

• [6] The employees to be covered by the Proposed Agreement are not currently covered by an agreement. Pursuant to s.235(5)(b) of the Act, the end of the minimum bargaining period is therefore the day that is 9 months after the day bargaining starts, as worked out under s.235(6). There is no supported bargaining authorisation or single interest employer authorisation in operation in relation to the Proposed Agreement. Therefore, in accordance with s.235(6)(b) of the Act, the notification time is the date the bargaining is considered to have started for the Proposed Agreement. The notification time for the Proposed Agreement was 29 September 2023. More than 9 months has elapsed since this date. The application was therefore made after the end of the minimum bargaining period for the purposes of s.235(1)(c).

Has the FWC dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC's processes to deal with the dispute? - s.235(2)(a)

• [7] APESMA filed a dispute under s.240 of the Act on 21 November 2024. That dispute was allocated to me, and I convened conferences with the parties under s.240 of the Act on the following dates:

• 10 December 2024;
• 20 December 2024; and
• 20 February 2025.

• [8] APESMA and the Respondent participated in each these conferences. I am satisfied that the Commission has dealt with the dispute under s.240 of the Act, and the applicant has participated in the Commission's processes to deal with the dispute for the purposes of s.235(2)(a) of the Act.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? - s.235(2)(b)

• [9] The parties agree that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. The parties have been bargaining for over 18 months. Despite bargaining conferences being convened by the Commission and protected industrial action being engaged in by APESMA members, the parties remain at an impasse. APESMA correctly points out that bargaining has progressed at a slow pace to-date, and the Respondent does not have a history of enterprise agreement making in Australia.

• [10] Having observed the recent negotiations of the parties, I agree with the parties that there is no reasonable prospect of agreement being reached if the Commission does not make an intractable bargaining declaration.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? - s.235(2)(c)

• [11] Given the progress of bargaining, the ongoing industrial action and its impact on service delivery and employees taking partial work bans, the unique cohort of employees to be covered by the Proposed Agreement, and the fact that the Respondent has been subject to applications for bargaining orders under s.229 of the Act, APESMA submitted that it is reasonable in all the circumstances for the Commission to make a declaration.

• [12] The Respondent supports the making of a declaration and is of the view that it is reasonable in all the circumstances for the Commission to make a declaration.

• [13] Taking into account the views of the bargaining representatives, I am satisfied that in all the circumstances, it is reasonable for the Commission to make an intractable bargaining declaration.

• [14] As the preconditions in s.235(1) of the Act have been met and having satisfied myself of the matters in ss.235(2), I exercise my discretion to make an intractable bargaining declaration in relation to the Proposed Agreement. In accordance with s.235(4) of the Act, the declaration will come into effect on 16 April 2025 and will cease to be in operation when the Respondent is covered by an enterprise agreement or a workplace determination.

• [15] Having regard to s.235A of the Act, I consider it appropriate for there to be a post-declaration period to allow the parties a period of time to determine if agreement can be reached. On account of the upcoming public holidays in April and May in Queensland, I consider it appropriate and have determined that the post-declaration negotiating period will end on 21 May 2025.

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