Metrowest Electrical & Communications Pty Ltd T/A Metrowest Electrical & Communications

[2014] FWC 8019

[2014] FWC 8019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metrowest Electrical & Communications Pty Ltd T/A Metrowest Electrical & Communications
(AG2014/8867)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 NOVEMBER 2014

Application for approval of the Metrowest Electrical & Communications Enterprise Agreement 2014-2018.

[1] Metrowest Electrical & Communications Pty Ltd (Metrowest), applied for approval of the Metrowest Electrical & Communications Enterprise Agreement 2014-2018 (the Agreement).

[2] On 10 October 2014, I wrote to Metrowest outlining some concerns I had about the Agreement. Some of the issues raised were relevant to the better off overall test (BOOT) and some were relevant to the National Employment Standards.

[3] On 15 October 2014, Metrowest responded to my concerns and provided a spreadsheet to support its contention that the Agreement passed the BOOT. Submissions were also provided. A hearing was held on 17 October 2014 and on 22 October 2014, Metrowest provided further undertakings.

[4] The statutory declaration filed in support of the application advised that the relevant awards for the purpose of the BOOT were the Electrical, Electronic and Communications Contracting Award 2010 1and the Clerks - Private Sector Award 2010.2

[5] The statutory declaration advised that the Agreement contained the following more beneficial provisions:

• The rates of pay in Schedule B and the allowances in the clauses below provide more generous compensation on balance.



• Clause 4. 2.3 provides for casual loading.



• Clause 5. 1.1 basic hourly rates of pay varies clause 16 of both the Awards.



• Clause 5.1.4 provides for Supervisor allowance - it varies clause 17.2(d) of the Electrical Award.



• Clause 5.2 provides for a living away from home allowance - it varies clause 17. 6 of the Electrical Award and clause 19.5 of the Clerks Award.




• Clause 5.3 provides for a travel allowance - it varies clause 17.5 of the Electrical Award.

• Clause 6.4.1 Non-continuous shift work - it varies clause 24.15 of the Electrical Award and clause 28.4 & 28.5 of the Clerks Award.



• Clause 6.5 provides for On-call allowance - it varies clauses 26.5 & 26.6 of the Electrical Award and clause 27.4 of the Clerks Award.



• Clause 6.6 provides for Meal and rest breaks - it varies clauses 24.9 & 27.1 of the Electrical Award and clause 26 of the Clerks Award.

[6] The statutory declaration also stated that the Agreement contained the following less beneficial provisions:

Electrical, Electronic and Communications Contracting Award 2010:

• Clause 17.2 All-purpose allowances (Tool, Industry & License) - not provided for in the Agreement.



• Clause 17.3 special allowance (First Aid) - not provided for in the Agreement.



• Clause 17.4 special allowances (Multi-story & Towers) - not provided for in the Agreement.



• Clause 28.3 Annual leave loading - not provided for in this Agreement.




Clerks - Private Sector Award 2010:

• Clause 19.1 Transport of employees - N/A and not provided for in this Agreement.



• Clause 19.2 Clothing and Footwear- not provided for in this Agreement.



• Clause 19.3 Meal Allowance - N/A and not provided for in this Agreement.



• Clause 19.4 Vehicle Allowance - varied by clause 5.3 of this Agreement.



• Clause 19.5 Living away from home allowance- varied by clause 5.3 of this Agreement.



• Clause 19.6 First Aid Allowance- not provided for in this Agreement.



• Clause 19.7 Higher Duty Allowance- not provided for in this Agreement.

The Fair Work Act 2009 requirements

[7] The Act sets the criteria for assessing the Agreement. 3 If the Commission has a concern that the Agreement does not meet the requirements of sections 186 and 187 of the Fair Work Act 2009, then the Commission may approve the Agreement if it is satisfied that the undertakings provided by the employer meets its concerns. Those undertakings must not cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement.4

Better Off Overall Test

Rates of Pay

[8] The Agreement provided for hourly rates of pay compared to the Awards as follows:

Classification	Agreement	Electrical Award
Labourer (Grade 1)	$20	17.11
Trades Assistant (Grade 2)	$21.50	17.72
Communications Worker (Grade 3)	$23	18.34
Communications Technician (Grade 4)	$24.50	18.96
Electrical Tradesperson (Grade 5)	$26	19.64
Administrative Officer	$18	20.00
Senior Administrative Officer	$21	20.74
Adult apprentices 1st year	$19	15.71
2nd year	$20	17.11
3rd year	$21	17.11
4th year	$22	17.11
Apprentices 1st year	$12	7.86
2nd year	$14.50	10.21
3rd year	$17	13.75
4th year	$19.50	16.10

[9] The Agreement rate of pay is inclusive of all non expense related allowances including the industry allowance, tool allowance, electrical licence allowance, nominee allowance, special allowance, construction allowances and multistorey allowances. 5 In addition, annual leave loading is not paid and neither is the first aid allowance.

[10] A labourer under the Award is entitled to the industry allowance 6 of $27.61 per week. In addition a labourer is entitled to be paid $5.49 per day for the travel time allowance7 and the start and/or finish on the job allowance of $17.878 if the job is less than 50kms from the depot. In addition a labourer is entitled to annual leave loading which is the equivalent of 23 cents per hour for 38 hours per week. For a 38 hour week, a labourer would be paid $760 under the Agreement and $803.26 (including these allowances and loading) under the Award.

[11] Under the Agreement, there is no entitlement to a travel allowance if the employees start at a job which is less than 50kms from the depot. 9

[12] Similarly an electrical tradesperson working a 38 hour week under the Agreement is paid $988 whereas under the Award if entitled to the industry allowance, 10 the electrical allowance of $26.86 per week,11 the nominees allowance of 68.65 per week,12 the tool allowance of $18.31,13 annual leave loading of $10.05 per week and $5.49 per day for the travel time allowance14 and the start and/or finish on the job allowance of $17.8715 the employee would be paid $1014.48 under the Award. These calculations do not include the multistorey allowance16 or first aid allowance,17 or meal allowances.18

[13] Assuming the only allowances payable to the Trades Assistant and the Communications workers are those paid to the labourer on my calculations only the Communications workers are better off with the all up rate.

[14] While I accept that if an employee works overtime, an employee may be better off due to the higher hourly rate of pay, overtime is not guaranteed.

[15] The rates of pay for the Administrative Officers are less than the Award. Section 206 of the Act ensures that the rate of pay in the Agreement cannot fall below the relevant Award rate of pay. It cannot be said that these rates are higher than the Award.

Proposed undertaking

[16] Metrowest proposed to increase rate of pay for the Administrative Officer to $21 per hour and the Senior Administrative Officer to $22 per hour.

[17] If the annual leave loading is factored in for a 38 hour week, an Administrative Officer under the Award would be paid $20.27 and the Senior Administrative Officer would be paid $21.02.

Part time employees

[18] The Agreement provides that part time employees work regular hours of less than 38 hours per week. The employees may work up to 38 hours plus additional hours.

[19] Under the Electrical Award, part time employees must be informed on engagement of their starting and finishing time and if the employee works outside of these hours overtime applies unless urgent or unforeseen circumstances intrude. 19

[20] Under the Clerks Award, at the commencement of employment a part time employee must have an agreement in writing which specifies at least the number of hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day. Changes in hours may be made by agreement but the days on which an employee works can be made by the employer giving one week’s notice. A part time employee has a minimum call of three hours and all hours worked in excess of the agreed hours are overtime. 20

Undertaking

[21] Metrowest undertook that part time employees would be advised of their regular rostered hours and starting and finishing times at their engagement and would pay part time employees overtime for all hours worked beyond their regular rostered hours per fortnight.

Casual employees

[22] Casual employees under the Agreement do not have a minimum call. Under the Clerks Award, casual employees have a minimum call of three hours. 21

Undertaking

[23] Metrowest undertook in its initial response to provide casual employees with a minimum call of four hours. This undertaking was not included in the final undertakings provided.

Living away from home

[24] The Agreement provides that if suitable accommodation and meals are not provided an allowance of $110 per day for accommodation and $55 per day for meals will be paid. Under the Electrical Award, the allowance is $455.20 per week. The Agreement rates are more beneficial. 22

Travel allowance

[25] A travel allowance of $17 per day is payable under the Agreement but only if the employee starts and finishes at a site or project more than 50kms away from the depot. This is less than the Electrical Award where an employee is paid the $17.87 allowance plus travel time. 23 In addition, under the Electrical Award employees receive $5.49 per day when they present themselves to work. I have regard to this when assessing the rates.

Overtime

[26] Employees under the Agreement are entitled to overtime at 150% for the first two hours and double time thereafter. All overtime on Sunday and a public holiday is at double time.

[27] For employees employed under the Electrical Award overtime on public holidays is at double time and a half. If an employee works overtime on a Saturday, Sunday or Public Holiday the employee must be paid a minimum of four hours pay. 24

[28] Under the Clerks Award, employees are paid overtime rates for work outside of ordinary hours of work. 25 All work on a public holiday is at double time and a half.

Shift loadings for non continuous shift workers

[29] Under the Agreement a 20% loading is paid for weekday shifts finishing after 7pm and at or before 5am. For Saturday shifts a loading of 50% is paid for any hour or part thereof that falls on a Saturday and for Sunday and Public Holiday shifts a 100% loading applies for any hour or part thereof that falls on a Sunday or Public Holiday. 26

[30] Under the Electrical Award non continuous shift workers receive a 15% loading for working afternoon or night shift. 27 However if the shift does not continue for five consecutive shifts the employees must be paid 150% for the first two hours and 200% thereafter.28 In some circumstances an employee on night shift is paid a loading of 130%.29 For work on Saturday the loading is 50% and double time is paid on Sunday or and double time and a half on Public Holidays.30

[31] All overtime for shift workers is paid at time and a half for the first two hours and double time thereafter.

[32] Under the Clerks Award, shift workers get paid a 15% loading for afternoon or night shift unless it is a permanent night shift in which case the loading is 30%. A shift worker who works ordinary hours on a Saturday, Sunday or Public Holiday must be paid at 150% for all hours worked. Overtime is paid to shift workers for work in excess of ordinary weekly hours of work at 150% for the first three hours and double time thereafter or for hours in excess of the ordinary shift, time and a half for the first two hours and double time thereafter. 31

[33] For overtime worked on a Saturday, Sunday or public holiday the employee must be paid double time with a minimum payment of four hours at double time.

Breaks between shifts

[34] Under the Agreement employees are entitled to eight hours break between shifts. Under the Clerks Award and Electrical Award, employees are entitled to a ten hour break after working overtime. 32

Standing by

[35] The rate for standing by is higher in the Agreement than in the Electrical Award.

Work on projects

[36] The Agreement provides that other arrangements, in relation to hours of work and/or shift work, may apply on particular jobs. In that case, the Company and individual employee “may agree on hours of work and shifts to suit the individual project needs.” In that case none of the non continuous shift provisions apply. There is no requirement that the employee is better off than they would be under the Agreement nor can the Company or the individual employee terminate the individual agreement. At most the Agreement provides that if there is a site specific agreement in place then if those conditions are provided those conditions must not be less beneficial than the Agreement.

Other provisions

[37] Employees are required to comply with all company policies. Some policies are incorporated into the Agreement. The ones that are not, must still be complied with. At common law, employees are required to comply with lawful and reasonable directions of their employer any breach of such an obligation may lead to disciplinary action. There is no requirement under the Awards that employees comply with company policies. By including the obligations to comply into the Agreement, breach of policy becomes a breach of the Agreement. Except where the policies have been expressly incorporated into the Agreement the policies impose obligations on employees without any commensurate obligation on Metrowest.

[38] Metrowest seek to impose obligations in relation to confidentiality both during employment and post employment.

Training Costs

[39] The Agreement permits Metrowest to direct employees to undertake training or further education. In those circumstances Metrowest will pay the costs of the training and pay employees at their ordinary time rate of pay. The Agreement provides that the employee agrees to reimburse Metrowest for such the course fees if the employee fails the course. If the employee resigns or abandons his or her employment the employee will reimburse Metrowest for the costs of training or further education incurred in the period of 12 months prior to the resignation.

[40] The Awards do not impose any obligation on employees to repay training costs where the employer directs an employee to undertake training. Further, an employee who resigns his or her employment under the Awards is required to give notice and if the employee fails to give notice the employer is able to either deduct the equivalent monies from any outstanding entitlements or recover the equivalent monies in a court. Under the Agreement, if the employee resigns his or her employment he or she must repay to Metrowest the costs of training or further education incurred in the previous 12 months.

Undertaking

[41] Metrowest undertook not to apply this to apprentices.

[42] Metrowest submitted that there may be cases, where because of this obligation employees may not be better off, but the vast majority of employees do not fail and have the benefit of being paid to study. Metrowest submitted that, “if a class of employees would be better off if the Agreement applied, the Commission is entitled to assume that the employees would be better off. Even if a particular individual is not better off, that does not mean the employees as a group or a class are not better off.”

Further undertakings

[43] Metrowest gave further undertakings in relation to Mysuper, deductions from employee wages and the definition of immediate family to make them consistent with the NES and the Act. Further Metrowest gave an undertaking that employees will be paid double time for working ordinary hours on a public holiday.

The BOOT

[44] As the Full Bench in Armacell 33 said “The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”

[45] Section 193(7) provides as follows:

“(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[46] I am not satisfied that employees are better off. While I accept that by working overtime employees may be financially better off, on my calculation, employees who work ordinary hours of work will not be better off.

[47] In any event I am not simply required to look at wages to assess the BOOT. I must have regard to all the more beneficial and less beneficial provisions.

[48] In relation to the repayment of training costs I do not accept the submissions of Metrowest that I should not have regard to the fact that a subclass of employees may not be better off. This is particularly so when it is not clear the amounts that that an employee may be required to repay on termination of employment is limited to course fees and there is no maximum fee set. On its own submissions Metrowest accepts that some employees may be worse off. It is clear that the Commission cannot assume individual employees who are members of the class are better off if there is evidence to the contrary.

[49] Some of the matters raised in this decision were not raised in my email to Metrowest or at the hearing, in particular my concern that employees working ordinary hours of work may not be better off. Metrowest have not had an opportunity to respond to this and to consider if it wishes to provide further undertakings. I will therefore provide Metrowest with a week from the date of this decision to provide further undertakings. If no further undertakings are provided the application for approval will be dismissed.

DEPUTY PRESIDENT

 1   MA000025

 2   MA000002

 3 Sections 186, 187 and 188

 4   Section 190

 5   Clause 5.1.4 of the Agreement

 6   Clause 17.2(a)

 7   Clause 17.5(c)

 8   Clause 17.5(d)

 9   Clause 5.3 of the Agreement

 10   Clause 17.2(a)

 11   Clause 17(c)

 12   Clause 17(e)

 13   Clause 17(b)

 14   Clause 17.5(c)

 15   Clause 17.5(d)

 16   Clause 17.4

 17   Clause 17.3(b)

 18   Clause 17.3(a) of Electrical Award

 19   Clause 10.2 of the Electrical Award

 20   Clause 11 of the Clerks Award

 21   Clause 12 of the Clerks Award

 22   Clause 17.6 of the Electrical Award

 23   Clause 17.5(d) of the Electrical Award

 24   Clause 26.3 of the Electrical Award

 25   Clause 25.1(c) of the Clerks Award

 26   Clause 24 of the Electrical Award

 27   Clause 24.13 of the Electrical Award

 28   Ibid

 29   Ibid

 30   Clause 24.14 of the Electrical Award

 31   Clause 28 of the Clerks Award

 32   Clause 27.3 of the Clerks Award and clause 27.4 of the Electrical Award

 33   Armacell Australia Pty Ltd v Wilmaridge Pty Ltd[2010] FWAFB 9985

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