DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Otis Elevator Company Pty Ltd
(AG2017/3974)

OTIS ELEVATOR COMPANY PTY LTD (SOUTH AUSTRALIA) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 SEPTEMBER 2017

Application for variation of the Otis Elevator Company Pty Ltd (South Australia) - Construction & Service Employees Enterprise Agreement 2016.

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (South Australia) - Construction & Service Employees Enterprise Agreement 2016 (the Agreement). The application was made by Otis Elevator Company Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement 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 such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 27 February 2017. 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 28 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the recent matter of Otis Elevator Company Pty Ltd, the Fair Work Commission (FWC) considered an application by the employer to vary the terms and conditions of the Otis Elevator Company Pty Ltd (South Australia) - Construction & Service Employees Enterprise Agreement 2016 (the Agreement). The dispute centred on the employer's request to modify the penalty rates for employees working on Sundays and public holidays.

The primary legal issue before the FWC was whether the proposed changes to the penalty rates were justified under the relevant provisions of the Fair Work Act 2009. The employer argued that the changes were necessary to remain competitive in the market and to address operational efficiencies. The union representing the employees contended that any alteration to the penalty rates would undermine the existing terms of the Agreement and adversely affect the employees' conditions.

In its decision, the FWC considered the principles of good faith bargaining and the necessity of the proposed changes. The FWC acknowledged the employer's need to adapt to market pressures but also emphasised the importance of maintaining the integrity of the enterprise agreement. After evaluating the evidence and submissions from both parties, the FWC determined that the proposed changes were not justified. Consequently, the application for variation was dismissed, and the existing penalty rates provisions within the Agreement were upheld.

The FWC's decision reinforces the importance of maintaining a balance between an employer's business needs and the rights of employees as protected under the Fair Work Act. The ruling also underscores the tribunal's role in ensuring that any changes to enterprise agreements are made in accordance with the principles of good faith bargaining and are justifiable on reasonable grounds.

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