PC Walls Pty Ltd

[2019] FWC 2596

[2019] FWC 2596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PC Walls Pty Ltd
(AG2018/6680)

COMMISSIONER MCKINNON MELBOURNE, 15 APRIL 2019

Application for approval of the PC Walls Pty Ltd Agreement 2018 – single enterprise agreement – genuinely agreed - better off overall test – application dismissed.

[1] Application has been made by PC Walls Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the PC Walls Pty Ltd Agreement 2018 (the Agreement).

[2] Concerns in relation to the application were raised with the Applicant on 15 March 2019 in relation to the definition of shiftworker and the better off overall test. The Applicant responded on 29 March 2019. The Applicant’s response addresses some 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 rates of pay, paid morning rest breaks, daily fares and travel patterns allowance, shift work call outs, travel to remote projects and the provision of one day’s notice of termination to casual employees. The Agreement is less favourable than the Award in relation to special, industry and tool allowances, overtime meal allowance and crib breaks, shift penalties, annual leave loading, dispute resolution training leave and redundancy.

[4] On the Commission’s analysis, Entry Level and Level A employees will not be better off overall under the Agreement, given accepted patterns of work in the construction industry.

[5] Level A employees working 50 hours per week, Monday to Friday, will earn $1436.86 under the Agreement compared to $1520.73 under the Award. The difference is attributable to the lack of overtime meal allowance and crib time in the Agreement. Comparable rates of pay for Entry Level employees are lower, but the result is substantially the same ($1396.31 under the Agreement compared to $1479.34 under the Award).

[6] Entry level, Level A and Level B shiftworkers also do not appear to be better off overall under the Agreement because the shift penalties in the Agreement are lower than in the Award. Level B employees working successive 10 hour afternoon shifts, Monday to Friday, would earn $1868.71 under the Agreement compared to $1903.61 under the Award, factoring for fares and travel patterns allowance, overtime meal allowance and crib break, annual leave accrual and leave loading as well as overtime at double time. For Level A employees, the difference is greater: $1710.18 (Agreement) compared to $1869.46 (Award). For Entry Level employees, the difference is $1661.43 (Agreement) compared to $1817.45 (Award).

[7] The detriment to employees is mitigated in part by terms of the Agreement that are more beneficial than the Award. 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.

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

COMMISSIONER

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