Otis Elevator Company Pty Ltd T/A Otis Elevator Company

[2023] FWCA 811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Otis Elevator Company Pty Ltd T/A Otis Elevator Company

(AG2023/517)

OTIS ELEVATOR COMPANY PTY LTD (NORTHERN TERRITORY) - SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 17 MARCH 2023

Application for approval of the Otis Elevator Company Pty Ltd (Northern Territory) - Service Employees Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Otis Elevator Company Pty Ltd (Northern Territory) - 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 T/A Otis Elevator Company. 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that some employees covered by the Agreement did not receive a copy of the Notice of Employee Representational Rights within 14 days after the notification time, as required by s.173(3) of the Act. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

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) I note that the Agreement covers the organisation.

The Agreement was approved on 17 March 2023 and, in accordance with s.54, will operate from 24 March 2023. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Otis Elevator Company Pty Ltd, trading as Otis Elevator Company, applied for approval of the proposed enterprise agreement. The applicant sought to establish the terms and conditions of employment for its employees covered by the agreement. The Commission was tasked with determining whether the agreement met the necessary legislative criteria for approval.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to assess if the agreement contained the minimum terms and conditions required by law and if it had been made in good faith. The applicant argued that the proposed agreement provided fair and reasonable terms for its employees and complied with all statutory requirements.

The Commission considered the provisions of the Fair Work Act, including the requirement that the agreement must not provide terms and conditions that are less favourable than the applicable minimum standards. The Commission also evaluated whether the agreement was made in good faith, considering the context and the process through which it was negotiated. After reviewing the evidence and submissions from both parties, the Commission was satisfied that the proposed agreement met all the necessary criteria. The agreement was approved, and the terms and conditions specified in the Otis Elevator Company Pty Ltd (Northern Territory) - Service Employees Enterprise Agreement 2022 were deemed effective.

The Commission made an order approving the proposed enterprise agreement. This decision ensures that the terms and conditions set out in the agreement will apply to the employees covered by it, providing a legally binding framework for their employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established