Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment

[2024] FWCA 633

[2024] FWCA 633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment

(AG2024/149)

MK2 RECRUITMENT EMPLOYEE AGREEMENT 2024

Industries not otherwise assigned
COMMISSIONER PLATT	ADELAIDE, 20 FEBRUARY 2024

Application for approval of the Mk2 Recruitment Employee Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Mk2 Recruitment Employee Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 2 February 2024.

1. On 5 February 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

   ·  Clause 30(b) states the Applicant may deduct any money due to the Employee on termination equal to the amount that was paid to the Employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

   ·  Clause 26 provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. These provisions appear to restrict an employee’s entitlement to payment of NES entitlements.

1. Clause 4(b) of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.  

1. The Applicant has submitted an undertaking in the required form dated 7 February 2024, a copy of which is attached to the Agreement. The undertaking ensures the BOOT is met with respect to rates of pay.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 February 2028.

COMMISSIONER

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