Otis Elevator Company Pty Ltd

[2014] FWCA 3131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Otis Elevator Company Pty Ltd
(AG2014/5832)

OTIS ELEVATOR COMPANY PTY LTD (WESTERN AUSTRALIA) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 13 MAY 2014

Application for approval of the Otis Elevator Company Pty Ltd (Western Australia) - Construction & Service Employees Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Otis Elevator Company Pty Ltd (Western Australia) - Construction & Service 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

The applicants, Otis Elevator Company Pty Ltd, sought approval of their enterprise agreement from the Fair Work Commission. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contested the application on various grounds, including that the agreement did not fairly and properly provide for the employees' terms and conditions of employment. The dispute was heard in the Fair Work Commission, an independent statutory tribunal established under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement provided for the employees' terms and conditions of employment fairly and properly, and whether the agreement contained provisions that were not genuinely agreed upon by the parties. The Commission considered the definition of "genuine agreement" under the Fair Work Act, which requires that the agreement was not made as a result of coercion, duress, or misrepresentation, and that both parties genuinely intended to be bound by the terms of the agreement. The Commission also examined whether the agreement provided for fair and proper terms and conditions of employment, including whether it met the "better off overall test" under the Act.

The Commission found that the agreement was genuinely agreed upon by the parties and that it provided for the employees' terms and conditions of employment fairly and properly. The Commission noted that the agreement had been negotiated over an extended period, with both parties making compromises to reach a mutually acceptable outcome. The Commission also found that the agreement met the better off overall test, as it provided for a range of benefits to the employees, including wage increases, improved leave entitlements, and better access to training and development opportunities. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act.

The Fair Work Commission approved the Otis Elevator Company Pty Ltd (Western Australia) - Construction & Service Employees Enterprise Agreement 2014, subject to certain modifications. The modifications related to the calculation of penalty rates and the inclusion of certain clauses in the agreement. The Commission found that the agreement provided for the employees' terms and conditions of employment fairly and properly, and that it met the better off overall test. The Commission also found that the agreement was genuinely agreed upon by the parties, and that it did not contain any provisions that were the result of coercion, duress, or misrepresentation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established