Randstad Pty Ltd

[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

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.

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]

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.

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

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Randstad Pty Ltd applied for approval of the RCPE Enterprise Agreement 2022, which aimed to establish terms and conditions of employment for its employees. The application was brought by the employer, who sought to implement the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the legislative requirements for enterprise agreements, including provisions related to employee representation and the process by which the agreement was negotiated and agreed upon.

The key legal issues before the Commission involved verifying the agreement's compliance with specific statutory provisions, particularly those requiring genuine bargaining and adequate representation of employee interests. The employer argued that the agreement was the result of good faith negotiations and adequately represented the workforce's interests. The Commission had to determine whether there was genuine agreement between the parties and whether the agreement met the standards of procedural fairness and substantive fairness.

The Commission examined the evidence provided regarding the negotiation process, the content of the agreement, and the level of employee engagement. It considered the employer's submissions and any objections raised by employees or their representatives. The Commission found that the employer had demonstrated a genuine effort to negotiate in good faith and that the agreement was supported by a majority of the employees. The Commission concluded that the agreement met the legislative requirements for approval and granted the application for its approval.

The Fair Work Commission approved the RCPE Enterprise Agreement 2022, effective from the date of the decision. The employer was authorised to implement the agreement, which would then serve as the basis for the terms and conditions of employment for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established