MOFFAT PTY LTD ENTERPRISE AGREEMENT - NSW SERVICE 2025-2028

Application for approval of the Moffat Pty Ltd Enterprise Agreement - NSW Service 2025-2028

[1] This decision concerns an application for approval of the Moffat Pty Ltd Enterprise Agreement - NSW Service 2025-2028 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by Moffat Pty Ltd (the Applicant). The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

[2] If the agreement is not a greenfields agreement, section 186(2)(a) of the FW Act requires the Fair Work Commission to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. The Agreement is not a greenfields agreement. The question of whether an enterprise agreement has been genuinely agreed to by the employees is determined by reference to section 188 of the FW Act. Section 188(4)(a) of the FW Act provides that the Fair Work Commission cannot be satisfied as to genuine agreement unless the Fair Work Commission is satisfied that sections 173 and 174 of the FW Act have been complied with. In considering the application, I raised a concern with the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which was a bargaining representative for the Agreement, and the additional bargaining representatives, concerning compliance with sections 173 and 174 of the FW Act. The concern being the Notice of Employee Representational Rights (NERR) named the agreement as the Moffat Pty Ltd Enterprise Agreement - NSW Service 2025-2925. (emphasis added). I sought the views of the Applicant, the CEPU and the additional bargaining representatives as to whether such error in the NERR could be disregarded in accordance with section 188(5) of the FW Act. The Applicant acknowledged the error and welcomed the exercise of section 188(5). The CEPU and the additional bargaining representatives did not express a view. I am satisfied that the reference to the year 2925 in the NERR is a minor error that can be disregarded in accordance with section 188(5) of the FW Act. In particular, I am satisfied that the employees were not likely to have been disadvantaged by that error.

[3] Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant about clause 13.2 of the Agreement. The concern being the interaction between section 62 of the FW Act and clause 13.2, which concerns reasonable additional hours. The Applicant proposed an undertaking to address this concern. I accept the undertaking. In doing so, I note that the CEPU and the additional bargaining representatives were given an opportunity to express their views about the undertaking. The CEPU and the additional bargaining representatives did not express a view about the undertaking. I am also satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. A copy of the undertaking is attached at Annexure A of this decision.

[4] Section 186(2)(d) of the FW Act requires the Fair Work Commission to be satisfied that the Agreement passes the better off overall test (BOOT). The assessment as to whether the Agreement passes the BOOT is applied in accordance with section 193A of the FW Act. In considering the application, I raised a concern with the Applicant, the CEPU and the additional bargaining representatives concerning trainees. Clause 3 of the Agreement provides that the Agreement covers Service Technicians employed by the Applicant in the State of New South Wales. That would appear not to extend coverage to any trainees. However, clause 10.4.b of the Agreement contains a reference to trainees. The concern being that the Agreement does not provide wage rates for Trainees. That gives rise to a difficulty as to how trainees could be assessed against the BOOT. In response to this concern, the Applicant proposed an undertaking to address this concern. I accept the undertaking. In doing so, I note that the CEPU and the additional bargaining representatives were given an opportunity to express their views about the undertaking. The CEPU and the additional bargaining representatives did not express a view about the undertaking. I am also satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. A copy of the undertaking is attached at Annexure A of this decision.

[5] Based on the material provided by the Applicant, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

[6] Section 201 of the FW Act requires the approval decision to note certain matters. The first such matter is that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The second such matter that is relevant to this application is section 201(3) of the FW Act. I note that the Agreement is approved with the attached undertaking, which is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 5 November 2025. The nominal expiry date of the Agreement is 31 March 2028.

Printed by authority of the Commonwealth Government Printer