DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Otis Elevator Company Pty Ltd
(AG2020/3028)

OTIS ELEVATOR COMPANY PTY LTD (AUSTRALIAN CAPITAL TERRITORY) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 20 OCTOBER 2020

Application for approval of the Otis Elevator Company Pty Ltd (Australian Capital Territory) - Construction & Service Employees Enterprise Agreement 2020.

[1] Application has been made by Otis Elevator Company Pty Ltd for approval of a single enterprise agreement known as the Otis Elevator Company Pty Ltd (Australian Capital Territory) - Construction & Service Employees Enterprise Agreement 2020 (the Agreement).

[2] 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.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 October 2020. The nominal expiry date of the Agreement is 28 February 2024.

[4] The Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Otis Elevator Company Pty Ltd applied for approval of the Construction and Service Employees Enterprise Agreement 2020 (the Agreement). The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application. The matter was heard in the Fair Work Commission (FWC).

The legal issues the court had to decide were whether the Agreement complied with the requirements of the Fair Work Act 2009 (Cth) and whether it met the good faith bargaining test. The CFMEU argued that the Agreement did not comply with the Act because it contained an unjustifiable variation in the annual leave provisions, which was inconsistent with the applicable minimum standards. They also claimed that the Agreement was not the product of genuine, good faith bargaining.

The FWC held that the Agreement did not comply with the Act because it contained an unjustifiable variation in the annual leave provisions. The tribunal found that the leave provisions were inconsistent with the applicable minimum standards and did not meet the good faith bargaining test. The tribunal held that the leave provisions were not necessary to accommodate the particular circumstances of the enterprise, as required by section 235(2)(b) of the Act. The tribunal also found that the bargaining process was not genuinely conducted in good faith, as the company did not provide the union with sufficient information to enable meaningful discussion.

The tribunal refused to approve the Agreement. The company has the right to appeal the decision to the Federal Court.

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