MRS Services Group Pty Ltd

[2019] FWC 2597

[2019] FWC 2597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MRS Services Group Pty Ltd
(AG2018/6050)

COMMISSIONER MCKINNON MELBOURNE, 15 APRIL 2019

Application for approval of the MRS SG Civil and Earthworks Enterprise Agreement 2018 – single enterprise agreement – better off overall test – application dismissed.

[1] Application has been made by MRS Services Group Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the MRS SG Civil and Earthworks Enterprise Agreement 2018 (the Agreement).

[2] Concerns in relation to the application were raised with the Applicant on 2 April 2019 in relation to the nominated superannuation fund, flexibility term, and the better off overall test. The Applicant responded promptly on 4 April 2019. The Applicant’s response addresses most of my concerns, including by offering undertakings for the benefit of employees. However, I remain concerned that the Agreement does not pass the better off overall test.

[3] The Building and Construction General On-Site Award 2010 is the relevant modern award for the purposes of the better off overall test. The Agreement is more favourable than the Award in relation to a 35 hour working week, an additional weeks’ annual leave and rates of pay. The Agreement is less favourable than the Award in relation to Saturday penalties, shift penalties, casual loading and redundancy.

[4] Except for leading hands and Earthworks Operator One employees with more than one year’s experience, on the Commission’s analysis, employees will not be better off overall, given patterns of work in the civil construction industry.

[5] The Applicant’s response does not resolve my concern that rates of pay with a margin of 17.05% or less above the Award will not leave employees better off overall, because there is no provision in the Agreement for allowances including fares and meal allowance and no equivalent provision for overtime crib breaks.

[6] A Labourer working 35 hours per week, Monday to Friday, will earn $872.23 under the Agreement compared to $949.24 under the Award. The difference is attributable to daily fares and travel pattern allowance when working on construction work, at a construction site located within 50 kilometres from the Muswellbrook or other relevant post office (clause 25.2 of the Award).

[7] A Labourer working a 50 hour week, Monday to Friday will earn $1477.23 under the Agreement compared to $1592.77 under the Award. The difference is attributable to lack of fares and travel patterns allowance as well as overtime meal allowance and crib breaks.

[8] The detriment to employees is mitigated at least in part by the more beneficial terms of the Agreement. However, on balance, I am not satisfied that the Agreement will leave each class of employees better off overall than if the Award applied to their employment.

[9] It follows that the Agreement cannot be approved. The application is dismissed.

COMMISSIONER

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