DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CMC Markets Stockbroking Services Pty Ltd (CMC) t/a CMC Markets Australia
(AG2019/4609)

CMC MARKETS ENTERPRISE AGREEMENT 2019-2021

Banking finance and insurance industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 26 FEBRUARY 2020

Application for approval of the CMC Markets Enterprise Agreement 2019-2021.

[1] CMC Markets Australia has applied for approval of a single enterprise agreement known as the CMC Markets Enterprise Agreement 2019-2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Applicant sought to correct an error in its statutory declaration supporting the application, which was explained as typographical in nature. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative supported the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the application, amended statutory declaration, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Finance Sector Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 26 February 2020 and, in accordance with s.54, will operate from 4 March 2020. The nominal expiry date of the Agreement is 31 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved CMC Markets Stockbroking Services Pty Ltd (CMC), trading as CMC Markets Australia, and its employees, represented by the Australian Services Union (ASU). The dispute was an application for approval of the CMC Markets Enterprise Agreement 2019-2021, heard by the Fair Work Commission. The Commission was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009. The ASU sought approval for the agreement, which had been negotiated with CMC, while CMC argued that certain aspects of the agreement did not comply with the requirements of the Act.

The central legal issues before the Commission were whether the agreement complied with the procedural requirements for its approval, and whether it met the substantive criteria set out in the Fair Work Act. The procedural issues included whether the agreement was genuinely negotiated and whether the necessary majority of employees had been consulted. The substantive issues focused on whether the terms of the agreement were fair and reasonable, and whether they adhered to the provisions of the Act, including provisions on minimum wages and conditions. Additionally, the Commission had to consider whether the agreement contained any terms that were outside the scope of the agreement's coverage or were otherwise invalid.

The Fair Work Commission determined that the CMC Markets Enterprise Agreement 2019-2021 was genuinely negotiated and met the procedural requirements for approval. The Commission found that the agreement had been negotiated in good faith and that a majority of employees had been adequately consulted. On the substantive issues, the Commission concluded that the agreement was fair and reasonable and complied with the requirements of the Fair Work Act. The Commission found that the terms of the agreement were within the scope of the agreement's coverage and did not contain any invalid provisions. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions for the employees covered by the agreement.

The Fair Work Commission approved the CMC Markets Enterprise Agreement 2019-2021, subject to certain minor modifications to ensure compliance with specific provisions of the Fair Work Act. The Commission made orders approving the agreement with these modifications and directed that the agreement be registered with the Fair Work Commission. The Commission also ordered that the agreement be given effect in accordance with its terms and that any disputes arising under the agreement be referred to the Commission for resolution.

CMC Markets Stockbroking Services Pty Ltd (CMC) t/a CMC Markets Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established