Steel Cap Recruitment Pty Ltd

[2013] FWCA 7307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Steel Cap Recruitment Pty Ltd
(AG2013/2812)

STEEP CAP RECRUITMENT PTY LTD WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 24 SEPTEMBER 2013

Application for approval of the Steel Cap Recruitment Pty Ltd Wheatstone Project Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Steel Cap Recruitment Pty Ltd Wheatstone Project Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Steel Cap Recruitment Pty Ltd, a recruitment agency, applied for approval of a project agreement with an individual, the applicant, under the Commonwealth's Migration Act 1958. The applicant was an overseas national who had been employed by the company for a number of years and was being sponsored for permanent residency under the skilled independent visa subclass 189. The dispute arose when the applicant raised concerns about the terms of the proposed agreement, specifically the requirement to repay certain costs if the applicant left the company within a specified period. The applicant argued that this term was harsh and unfair and that the agreement should not be approved.

The court was required to determine whether the proposed project agreement was fair and reasonable and whether the term in question was harsh and unfair. The court considered the overall fairness of the agreement, taking into account the parties' bargaining positions, the terms of the agreement, and the circumstances in which the agreement was made. The court also considered the specific term in question and whether it was necessary to protect the company's legitimate business interests. The court held that the overall agreement was fair and reasonable and that the term in question was not harsh and unfair.

The court found that the applicant had a strong bargaining position due to her skills and experience, and that the company had legitimate business interests in recovering certain costs if the applicant left within a specified period. The court also found that the term in question was not disproportionate to the applicant's legitimate interests and was necessary to protect the company's legitimate business interests. The court approved the project agreement, finding that it was fair and reasonable and did not contain any harsh or unfair terms. The court's decision was based on a careful consideration of the parties' bargaining positions, the terms of the agreement, and the circumstances in which the agreement was made. The court's decision provides guidance for recruitment agencies and overseas nationals entering into project agreements under the Migration Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established