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

Printed by authority of the Commonwealth Government Printer

PC Walls Pty Ltd applied to the Fair Work Commission for approval of a single enterprise agreement, the PC Walls Pty Ltd Agreement 2018. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on the basis that the agreement was not genuinely agreed and did not satisfy the better off overall test. The matter was heard in the Full Bench of the Fair Work Commission.

The primary issue for the Full Bench to determine was whether the agreement was genuinely agreed by the employees and whether it met the better off overall test. The Full Bench found that the application was based on the employer's assertion that the agreement had been genuinely agreed, and there was no direct evidence to support this claim. The Full Bench held that the employer had not discharged the onus of proving that the agreement was genuinely agreed. Additionally, the Full Bench found that the agreement did not satisfy the better off overall test as the employees would be worse off in terms of their entitlements and conditions.

Consequently, the Full Bench dismissed the application for approval of the PC Walls Pty Ltd Agreement 2018. The Full Bench held that the agreement was not genuinely agreed and did not meet the better off overall test. The Full Bench noted that the employer had failed to provide sufficient evidence to establish that the agreement had been genuinely agreed, and the agreement did not provide sufficient benefits to the employees to satisfy the better off overall test. The Full Bench also noted that the employer had not demonstrated that the agreement was the product of genuine bargaining between the parties.

The Full Bench dismissed the application for approval of the PC Walls Pty Ltd Agreement 2018, and the agreement was not approved. The Full Bench held that the employer had not discharged the onus of proving that the agreement was genuinely agreed and did not meet the better off overall test.

PC Walls Pty Ltd

DECISION

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