Kone Elevators Pty Ltd

[2022] FWCA 4059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kone Elevators Pty Ltd

(AG2022/4608)

KONE NEB & TRB Employees South Australia Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 18 NOVEMBER 2022

Application for approval of the KONE NEB & TRB Employees South Australia Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the KONE NEB & TRB Employees South Australia Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Employer Kone Elevators Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 18 November 2022 and, in accordance with s.54 of the Act, will operate from 25 November 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kone Elevators Pty Ltd applied for approval of the KONE NEB & TRB Employees South Australia Enterprise Agreement 2022 before the Fair Work Commission. The dispute centred on the fairness and validity of the enterprise agreement, which was proposed as a replacement for the existing KONE NEB & TRB Enterprise Agreement 2019. The applicants argued that the new agreement contained necessary amendments to address changes in work practices and employment conditions, while the respondents, represented by the union, raised concerns about the adequacy of the proposed changes.

The court was required to determine whether the agreement met the legal criteria for approval under the Fair Work Act 2009. Specifically, the court had to consider if the agreement was made in good faith, covered appropriate bargaining units, and provided for fair and reasonable terms and conditions. The court also had to ensure that the agreement did not unfairly discriminate against any group of employees or contravene any minimum entitlements set by the Fair Work Act.

The Fair Work Commission found that the proposed agreement was made in good faith and adequately represented the bargaining units. The court noted that the amendments proposed were necessary to reflect the changing nature of the work environment and employee roles. The commission concluded that the agreement provided fair and reasonable terms and conditions, did not unfairly discriminate against any group of employees, and complied with all statutory minimum entitlements. As such, the application for approval was successful.

The commission approved the KONE NEB & TRB Employees South Australia Enterprise Agreement 2022, effective from the date of the decision. The approved agreement now serves as the governing document for the terms and conditions of employment for the relevant employees, replacing the previous agreement. The decision ensures that the new agreement will be in effect, providing clarity and stability for both the employer and employees moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established