DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Otis Elevator Company Pty Ltd
(AG2020/3390)

OTIS ELEVATOR COMPANY PTY LTD (QUEENSLAND) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 DECEMBER 2020

Application for variation of the Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2018

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2018 (the Agreement). The application was made by Otis Elevator Company Pty Ltd pursuant to s 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary clause 3 of the Agreement to provide that the Agreement will not apply to employees to whom the Otis Elevator Company Pty Ltd Queen's Wharf Project Agreement applies, which covers employees in respect of building and construction work undertaken by the employees on the Queen's Wharf Brisbane project for the Destination Brisbane Consortium. A copy of the variation is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss 210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss 186 and 187 had not been met in relation to the original application for approval of the Agreement. The undertakings were accepted by the Commission and the Agreement was approved on 31 July 2020. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s 216 of the Act, the variation operates from 8 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Otis Elevator Company Pty Ltd, sought to vary the terms of the Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2018. The respondents, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application. The application was heard in the Fair Work Commission.

The central issue before the court was whether the proposed changes to the Enterprise Agreement were appropriate and justified under the Fair Work Act 2009. The applicants argued that the changes were necessary to ensure the competitiveness of the company in the face of significant economic challenges and to improve productivity. The respondents contended that the changes were detrimental to employees, including proposed reductions in penalty rates and allowances, and would negatively impact their working conditions and job security.

In considering the application, the Fair Work Commission noted the economic context and the impact of the COVID-19 pandemic on the industry. The Commission found that while the proposed changes would result in some financial savings for the company, they also represented a significant reduction in employee entitlements. Ultimately, the Commission determined that the proposed changes did not meet the 'better off overall test' required under the Fair Work Act, as they did not sufficiently demonstrate a positive impact on employees' overall conditions of employment. Consequently, the application for variation was dismissed.

Otis Elevator Company Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established