DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KONE Elevators Pty Ltd T/A KONE Elevators
(AG2018/5461)

KONE SERVICE EMPLOYEES WESTERN REGION ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 FEBRUARY 2019

Application for approval of the KONE Service Employees Western Region Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the KONE Service Employees Western Region Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KONE Elevators Pty Ltd T/A KONE Elevators. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 12 February 2019 and, in accordance with s.54, will operate from 19 February 2019. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the KONE Service Employees Western Region Enterprise Agreement 2018. The applicant, KONE Elevators Pty Ltd, sought approval of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary criteria for approval, including provisions relating to pay, conditions, and the bargaining process.

The primary legal issues before the Commission were whether the agreement was a "better off overall test" (BOOT) agreement, whether it complied with the procedural requirements under the Act, and whether it contained any provisions that were contrary to public policy or contrary to the objects of the Act. The Commission also needed to consider whether the agreement provided for the terms and conditions of employment of the employees covered by the agreement.

The Fair Work Commission found that the agreement was a BOOT agreement, meaning that the majority of employees preferred the agreement over their existing terms and conditions. The Commission also found that the agreement complied with the procedural requirements of the Act, including the requirement for genuine bargaining. The Commission held that the agreement did not contain any provisions that were contrary to public policy or the objects of the Act. The Commission approved the agreement, subject to certain minor modifications to comply with the Act.

The Fair Work Commission approved the KONE Service Employees Western Region Enterprise Agreement 2018, subject to the modifications. The Commission ordered that the agreement be registered with the Fair Work Commission and that it would be in effect from the date of registration. The Commission also ordered that the applicant provide a copy of the agreement to the relevant employees and to the Fair Work Ombudsman.

KONE Elevators Pty Ltd T/A KONE Elevators

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established