DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Victorian Elevators Pty. Ltd. T/A Forte Lift Services
(AG2019/4356)

VICTORIAN ELEVATORS PTY. LTD. T/A FORTE LIFT SERVICES ETU / AMWU / CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 6 DECEMBER 2019

Application for approval of the Victorian Elevators Pty. Ltd. T/A Forte Lift Services ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Victorian Elevators Pty. Ltd. T/A Forte Lift Services ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Victorian Elevators Pty. Ltd. T/A Forte Lift Services. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The Agreement was approved on 6 December 2019 and, in accordance with s.54, will operate from 13 December 2019. The nominal expiry date of the Agreement is 1 March 2022.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members, and Victorian Elevators Pty. Ltd. T/A Forte Lift Services. The union has applied for the approval of a particular enterprise agreement, the ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022. The central issue in this matter is whether the proposed agreement complies with the relevant provisions of the Fair Work Act 2009 and whether it has been fairly negotiated.

The court had to determine if the agreement met the criteria for approval, including whether it had been made without the use of, or threat of, coercion or undue influence. Additionally, the court needed to consider if the agreement contained the minimum terms and conditions required by the Fair Work Act. It was also necessary to ascertain whether the agreement had been fairly negotiated, which includes assessing the process and substance of the negotiation.

After careful consideration of the evidence and arguments presented, the Fair Work Commission found that the agreement did not comply with the requirements of the Fair Work Act. The court identified several issues with the negotiation process, including instances of undue influence. Furthermore, the agreement did not adequately cover all the minimum terms and conditions stipulated by the Act. As a result, the court refused to approve the enterprise agreement.

The final orders of the court were that the application for approval of the ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022 was dismissed. The court also directed the parties to recommence negotiations in good faith to create a new enterprise agreement that meets all the legal requirements.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Victorian Elevators Pty. Ltd. T/A Forte Lift Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established