Otis Elevator Company Pty Ltd

[2022] FWCA 1146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Otis Elevator Company Pty Ltd

(AG2022/658)

Otis Elevator Company Pty Ltd (Western Australia) Construction & Service Employees Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 1 APRIL 2022

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

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 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Otis Elevator Company Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 April 2022. The nominal expiry date of the Agreement is 31 December 2025.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Otis Elevator Company Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement, the Otis Elevator Company Pty Ltd (Western Australia) Construction & Service Employees Enterprise Agreement 2022. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the proposed agreement did not provide adequate protection for employees. The matter was heard by the Commission, which had to determine whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The key legal issue before the Commission was whether the proposed agreement provided appropriate safeguards for the employees' interests, in accordance with the provisions of the Fair Work Act. Specifically, the Commission had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the procedural requirements for enterprise agreements. The Commission also had to consider the submissions made by the CFMEU and whether there were any procedural defects in the application process.

In its decision, the Commission found that the proposed agreement did not provide adequate protection for employees in certain areas, such as job security and redundancy entitlements. The Commission also found that there were procedural defects in the application process, as the employer had not provided the CFMEU with sufficient information about the proposed agreement. As a result, the Commission refused to approve the proposed agreement. The Commission emphasised the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions of employment, and that the application process is followed properly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established