Kone Elevators Pty Ltd

[2014] FWCA 2805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kone Elevators Pty Ltd
(AG2014/5646)

KONE WESTERN REGION - INSTALLATION & TRB EMPLOYEES ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 30 APRIL 2014

Application for approval of the Kone Western Region-Installation & TRB Employees-Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kone Western Region-Installation & TRB Employees-Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Kone Elevators Pty Ltd, the Fair Work Commission (FWC) was tasked with approving the Kone Western Region-Installation & TRB Employees-Enterprise Agreement 2014. The dispute arose between Kone Elevators Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The crux of the matter involved the proposed terms and conditions of employment outlined in the enterprise agreement, which needed to meet the statutory requirements under the Fair Work Act 2009.

The legal issues before the FWC centred on whether the proposed enterprise agreement complied with the Fair Work Act, particularly sections 234 and 235, which require that enterprise agreements be fair and provide for a genuine enterprise bargaining process. The FWC had to determine if the agreement achieved a balance between the interests of the employer and the employees, ensuring it met the "better off overall test." The Commission also examined whether the agreement adhered to the provisions regarding procedural fairness, particularly in how the agreement was negotiated.

After careful consideration, the FWC concluded that the proposed enterprise agreement did not adequately meet the statutory requirements. The Commission found that while the agreement contained provisions that were beneficial to the employees, it did not sufficiently address the employer's interests and did not achieve the necessary balance required by the Act. Additionally, the FWC identified procedural shortcomings in the bargaining process, which undermined the fairness of the agreement. Consequently, the FWC rejected the application for approval of the enterprise agreement.

The final orders of the FWC mandated that Kone Elevators Pty Ltd and the CFMEU return to the bargaining table to negotiate a revised agreement that would comply with the statutory requirements of the Fair Work Act. The FWC emphasised the need for a genuine bargaining process and an agreement that would be fair and meet the better off overall test.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established