M Power U Pty Ltd ATF the Montini Family Trust T/A M Power U Electrical Contracting

[2024] FWCA 3861

[2024] FWCA 3861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

M Power U Pty Ltd ATF the Montini Family Trust T/A M Power U Electrical Contracting

(AG2024/3820)

M POWER U ELECTRICAL CONTRACTING ENTERPRISE AGREEMENT 2024 - 2028

Electrical contracting industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 5 NOVEMBER 2024

Application for approval of the M Power U Electrical Contracting Enterprise Agreement 2024 - 2028

1. An application has been made for approval of an enterprise agreement known as the M Power U Electrical Contracting Enterprise Agreement 2024 - 2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by M Power U Pty Ltd ATF the Montini Family Trust (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 August 2024 and the Agreement was made on 18 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

1. There was a minor technical error with the NERR issued by the Applicant in that it displayed the Applicant’s logo, but I have chosen to disregard this error pursuant to s.188(5) of the Act. There were also two potential BOOT issues identified. One was with respect to overtime worked by clerical staff but the Applicant advised that clerical staff do not work overtime and it is not reasonably foreseeable that they will work overtime during the life of the Agreement. The second issue related to the potential that an employee only working Saturdays may not be better off. The Applicant advises that it does not have any employees who only work Saturdays and it is not reasonably foreseeable that they will have anu such employees during the life of the Agreement. Given these two responses, I am satisfied that the BOOT concerns are not relevant.

1. The Applicant has provided written undertakings (Annexure A). I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 5 November 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A: