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

[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

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.

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.

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.

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.

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.

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.

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

Annexure A:

CaseChat Overview and Summary

In the recent case of M Power U Pty Ltd ATF the Montini Family Trust T/A M Power U Electrical Contracting, the Fair Work Commission was called upon to consider the application for approval of the M Power U Electrical Contracting Enterprise Agreement 2024 - 2028. The dispute arose between M Power U Pty Ltd, the employer, and the Electrical Trades Union of Australia (ETUA), representing the employees. The crux of the matter was whether the proposed enterprise agreement met the legal criteria for approval under the Fair Work Act 2009.

The central legal issues addressed by the Commission included whether the agreement provided for a safety net of minimum entitlements, allowed for genuine individual employment arrangements, and was free from any unfair content. Additionally, the Commission needed to ensure the agreement was made in good faith and without any coercion. These considerations were vital to determining the agreement's fairness and compliance with statutory requirements.

In examining the evidence presented, the Commission found that the agreement comprehensively addressed all the required elements. The agreement provided for a safety net of minimum entitlements that aligned with the statutory minimums and allowed for genuine individual employment arrangements. Furthermore, the Commission was satisfied that the agreement was free from any unfair content and was made in good faith. As such, the application for approval was granted, and the agreement was certified as meeting the necessary standards under the Fair Work Act 2009.

The Fair Work Commission approved the M Power U Electrical Contracting Enterprise Agreement 2024 - 2028, thereby setting it aside as a legally binding document between the employer and the employees. The Commission's decision ensures that the agreement will govern the employment terms and conditions of the parties for the specified period, subject to the statutory protections and rights afforded under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established