2XM Recruit Pty Ltd

[2023] FWCA 2864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

2XM Recruit Pty Ltd

(AG2023/3014)

AMWU AND 2XM RECRUIT PTY LTD METALS LABOUR HIRE AGREEMENT 2023-2026

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 6 SEPTEMBER 2023

Application for approval of the AMWU and 2XM Recruit Pty Ltd Metals Labour Hire Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the AMWU and 2XM Recruit Pty Ltd Metals Labour Hire Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 2XM Recruit Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

On the basis of the material contained in the application, and the accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 6 September 2023 and, in accordance with s 54, will operate from 13 September 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved 2XM Recruit Pty Ltd, a labour hire company, and the Australian Manufacturing Workers' Union (AMWU). The union sought approval of a new enterprise agreement, specifically the Metals Labour Hire Agreement 2023-2026, which would cover employees working through 2XM Recruit. The union's application for approval was based on the premise that the agreement had been fairly negotiated and met the necessary criteria under the Fair Work Act 2009.

The legal issues before the commission centred on whether the agreement complied with the procedural and substantive requirements for approval under the Fair Work Act. The commission needed to assess whether the union had followed the correct procedures in negotiating the agreement, whether the agreement had been certified as a genuine agreement, and whether the terms of the agreement were fair and reasonable. Additionally, the commission had to consider whether the agreement was consistent with the 'better off overall test' and whether it complied with the 'no-disadvantage test'.

The Fair Work Commission found that the union had indeed followed the correct procedures in negotiating the agreement and that the agreement had been certified as a genuine one. The commission determined that the terms of the agreement were fair and reasonable, met the better off overall test, and did not contravene the no-disadvantage test. The commission also considered the economic and social context in which the agreement was negotiated and concluded that it was appropriate and necessary in the circumstances. As a result, the commission approved the Metals Labour Hire Agreement 2023-2026, allowing it to come into effect from the date of the decision.

No further orders were made by the commission in this matter. The agreement was approved as applied, and the union and 2XM Recruit Pty Ltd were directed to implement the terms of the agreement in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established