DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment
(AG2019/3531)

MK2 RECRUITMENT EMPLOYEE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 20 DECEMBER 2019

Application for approval of the Mk2 Recruitment Employee Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Mk2 Recruitment Employee Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2019. The nominal expiry date of the Agreement is 19 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Mk2 Recruitment Pty Ltd, trading as Mk2 Recruitment, applied to the Federal Circuit Court for approval of their Employee Agreement 2019. The company sought this approval under the Fair Work Act 2009 to enable the agreement to be registered with the Fair Work Commission. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the proposed agreement did not meet the criteria for an individual employment agreement as outlined in the Act. The union contended that the agreement was, in fact, a collective agreement that should be registered as such.

The court was tasked with determining whether the Employee Agreement 2019 was indeed an individual agreement or a collective agreement. This required the court to examine the terms and purpose of the agreement and assess whether it met the statutory requirements for an individual employment agreement. The court also needed to consider whether the agreement had been appropriately negotiated and whether it provided for the protection of employees' rights and interests.

In its decision, the court found that the Employee Agreement 2019 was not an individual agreement but rather a collective agreement. The court reasoned that the agreement was designed to cover multiple employees and establish terms and conditions of employment that were not tailored to individual circumstances. The court further determined that the agreement had been negotiated in a manner consistent with collective bargaining and provided adequate protections for the employees' rights. Consequently, the court rejected the application for approval of the agreement as an individual employment agreement.

The court ordered that the application for approval of the Mk2 Recruitment Employee Agreement 2019 as an individual employment agreement be dismissed. The court directed that the agreement be treated as a collective agreement for the purposes of registration with the Fair Work Commission.

Mk2 Recruitment Pty Ltd T/A Mk2 Recruitment

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established