Randstad Pty Ltd

[2022] FWCA 912

[2022] FWCA 912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Randstad Pty Ltd

(AG2022/433)

RCPE Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 16 MARCH 2022

Application for approval of the RCPE Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement to be known as the RCPE Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Randstad Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant readily acknowledged a discrepancy in this regard in relation to one casual employee who should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote.  However, I acknowledge the submissions of the Applicant (by way of email dated 15 March 2022), by reference to the evidence before me as to the vote that occurred, that whether this one casual employee voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote.  Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

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. I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 March 2022. The nominal expiry date of the Agreement is 16 March 2026.

DEPUTY PRESIDENT

[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 7599

[2] Note decision of Cirkovic C in Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].

[3] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[4] Ibid.

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