NX Blue Recruit Pty Ltd T/A NX Blue Recruit

[2022] FWCA 3782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NX Blue Recruit Pty Ltd T/A NX Blue Recruit

(AG2022/4282)

NX BLUE RECRUIT PTY LTD, AWU SYDNEY METRO WEST – WESTERN TUNNELLING PACKAGE, PRECAST FACILITY- EASTERN CREEK GREENFIELD AGREEMENT 2022-2026

Miscellaneous
COMMISSIONER P RYAN	SYDNEY, 27 OCTOBER 2022

Application for approval of the NX Blue Recruit Pty Ltd, AWU Sydney Metro West – Western Tunnelling Package, Precast Facility – Eastern Creek Greenfield Agreement 2022 - 2026

An application has been made for approval of a greenfields agreement known as the NX Blue Recruit Pty Ltd, AWU Sydney Metro West – Western Tunnelling Package, Precast Facility- Eastern Creek Greenfield Agreement 2022-2026 (Agreement). The application was made by NX Blue Recruit Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (FW Act).

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

On the materials before the Commission, I am satisfied that:

·this is a greenfields agreement that meets the requirements of s.172(2)(b) of the FW Act;

·each of the requirements of ss.186 and 187 of the FW Act as are relevant to this application for approval have been met;

·the Australian Workers Union (AWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it (see s.187(5)(a) of the FW Act); and

·it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the FW Act I note the Agreement was made with the AWU and that the Agreement covers that organisation.

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 3 November 2022. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by NX Blue Recruit Pty Ltd, trading as NX Blue Recruit, seeking approval of a new enterprise agreement with the Australian Workers' Union (AWU). The agreement, titled "AWU Sydney Metro West – Western Tunnelling Package, Precast Facility – Eastern Creek Greenfield Agreement 2022 - 2026", was proposed for a period of four years. The dispute centred on whether the agreement complied with the relevant legislative framework and if it could be certified as a lawful agreement. The application was heard by the Fair Work Commission, a tribunal with jurisdiction to make binding decisions on workplace relations matters.

The primary legal issue the Commission had to resolve was whether the proposed agreement complied with the provisions of the Fair Work Act 2009. Specifically, the Commission examined whether the agreement met the "better off overall test" (BOOT), ensuring that no employee would be worse off financially, and whether it contained all the required minimum terms and conditions as stipulated by the Act. Additionally, the Commission assessed if the agreement was made in good faith and whether proper consultation processes were followed.

In its decision, the Fair Work Commission found that the proposed agreement met all the necessary legislative requirements. The Commission confirmed that the agreement provided for a fair and reasonable outcome for employees, satisfying the BOOT. It also determined that the agreement included all required minimum terms and conditions and was made in good faith. The Commission was satisfied that appropriate consultation processes had been undertaken, and that the agreement was fair and reasonable in all the circumstances. Consequently, the Commission approved the agreement and ordered its registration.

The Fair Work Commission ordered that the "AWU Sydney Metro West – Western Tunnelling Package, Precast Facility – Eastern Creek Greenfield Agreement 2022 - 2026" be registered as a lawful agreement under the Fair Work Act 2009, effective from the date of the decision. The agreement was to apply to all employees covered by the agreement, and the parties were directed to take all necessary steps to give effect to the approved agreement. The Commission's decision provided clarity on the legal compliance of the proposed agreement and facilitated the smooth implementation of the terms between the employer and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established