MG Electrical Services Pty Ltd

[2013] FWC 3071

[2013] FWC 3071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MG Electrical Services Pty Ltd
(AG2013/210)

COMMISSIONER CAMBRIDGE SYDNEY, 15 MAY 2013

Application for approval of MG Electrical Services Pty Ltd Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the MG Electrical Services Pty Ltd Enterprise Agreement 2013 - 2017(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by MG Electrical Services Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Darwin on 31 January 2013, by the Employer’s representative, the Master Builders Association of the Northern Territory (Master Builders NT). The application included a Statutory Declaration of a Jacqui Goold made on behalf of the Employer and dated 31 January 2013(the Declaration). The Declaration stated that the Agreement was made on 23 January 2013. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 4 March 2013, at which time Ms M. Gallen from the Master Builders NT, appeared via telephone link on behalf of the Employer. During the proceedings held on 4 March, the Fair Work Commission (the Commission) identified various concerns related to the application documents and relating to the contents of numerous terms contained in the Agreement. The Employer was invited to consider the various issues raised by the Commission and to respond in writing.

[4] In the absence of the provision of further material from the Employer, the matter was listed for a (second) Hearing on 14 May 2013. On this occasion, Ms Gallen again appeared via telephone for the Employer. Ms Gallen apologised most sincerely for the delay associated with the matter and undertook to provide written undertakings before the close of business on that day, 14 May 2013.

[5] The Commission has received a communication dated 14 May 2013, from the Master Builders NT which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[6] I have considered the contents of the material provided by the Master Builders NT including the Undertakings. I recognise and commend the extensive work that has been undertaken by the Master Builders NT involved in the preparation of the Undertakings. The Undertakings appear to have attempted to rectify most, if not all of the concerns that were raised by the Commission during the proceedings held on 4 March 2013.

[7] However, unfortunately the changes that have been proposed in the Undertakings do not provide for clear rectification of all of the concerns which have been raised. For instance, importantly, the material provided in respect of the Better Off Overall Test (BOOT) appears to refer to increased hourly rates of pay, but the Undertakings do not include a revised Appendix 1 (or A) showing any increased hourly rates of pay. Consequently, the Commission cannot be satisfied that the “loaded” wage rates in the Agreement are sufficiently in excess of the comparable rates in the relevant Modern Award to adequately compensate for the loss of additional rates and penalty payments applicable for work performed outside of the daily and weekly span of hours or on Saturdays, Sundays and Public Holidays. Consequently I am not satisfied that the Agreement, even if it was to include the terms of the Undertakings, would pass the BOOT.

[8] Further clarifications and further Undertakings could be sought, but in view of the time standards that apply to applications for approval of Enterprise Agreements, any further protraction of the proceedings in this matter would be highly undesirable.

[9] The Undertakings extend to 14 pages and include 25 indentified concerns. The Undertakings include changes to principal terms in the Agreement such as the ordinary hours of work and the hourly rates of pay. As was suggested during the proceedings held on 4 March 1, the changes that would result from the Undertakings becoming terms of the Agreement would produce, in both appearance and effect, an instrument that possessed little resemblance to the original. The Undertakings, if accepted, would undeniably result in substantial changes to the Agreement. The provisions of subsection 190 (3) of the Act do not allow me to accept the Undertakings.

[10] Unfortunately, as I am unable to accept the Undertakings, the Agreement does not satisfy the legislative requirements for approval of enterprise agreements and therefore the application for approval must be dismissed.

COMMISSIONER

Appearances:

Ms M. Gallen on behalf of Master Builders NT

Hearing details:

2013.

Sydney:

March, 4 and May, 14.

 1   Transcript of proceedings (4 March 2013) @ PN30.

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