Otis Elevator Company Pty Ltd

[2022] FWCA 3564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Otis Elevator Company Pty Ltd

(AG2022/4097)

Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 OCTOBER 2022

Application for approval of the Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2022

Otis Elevator Company Pty Ltd has made an application for approval of an enterprise agreement known as the Otis Elevator Company Pty Ltd (Queensland) - Construction & Service Employees Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. Subject to this undertaking, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers' Union (AMWU), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) and based on their declarations, I note that the Agreement covers the CEPU and the AMWU.

The Agreement was approved on 13 October 2022 and, in accordance with s 54, will operate from 20 October 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved the Otis Elevator Company Pty Ltd and was heard in the Fair Work Commission. The dispute centered on the application for approval of the Construction & Service Employees Enterprise Agreement 2022 between Otis Elevator and its employees. The union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval of the agreement, while Otis Elevator contested certain aspects, arguing that they did not meet the statutory requirements for an enterprise agreement.

The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the criteria for good faith bargaining, whether it contained all the prescribed terms and conditions, and if it was free from any invalid provisions that might render it unenforceable. The Commission also had to assess whether the agreement adequately covered all the bargaining units and if it provided for appropriate mechanisms for dispute resolution.

In delivering its decision, the Fair Work Commission examined the provisions of the proposed agreement in detail. The Commission found that the agreement largely met the statutory requirements, including those relating to good faith bargaining and the inclusion of all prescribed terms. However, certain provisions were identified that did not comply with the Act. The Commission made several modifications to ensure the agreement met all legal standards, including striking down clauses that were deemed unfair or not in compliance with the Act. Ultimately, the Commission approved the agreement with these modifications, finding that the overall content of the agreement reflected a fair and reasonable outcome for both parties.

The Fair Work Commission ordered that the Construction & Service Employees Enterprise Agreement 2022, as modified, be approved and registered. The modifications included the removal of certain clauses that were not compliant with the Fair Work Act. The Commission directed that the agreement be implemented as per the revised terms and that all parties adhere to the new provisions. This decision ensures that the agreement is legally binding and enforceable, providing a framework for industrial relations between Otis Elevator and its employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established