DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Otis Elevator Company Pty Ltd T/A Otis Elevator Company
(AG2020/2089)

OTIS ELEVATOR COMPANY PTY LTD (NEW SOUTH WALES) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 3 AUGUST 2020

Application for variation of the Otis Elevator Company Pty Ltd (New South Wales) - Construction & Service Employees Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (New South Wales) - Construction & Service Employees Enterprise Agreement 2019 (the Agreement). The application was made by Otis Elevator Company Pty Ltd T/A Otis Elevator Company 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 concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 16 October 2019. 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 3 August 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Otis Elevator Company Pty Ltd, trading as Otis Elevator Company, applied to the Fair Work Commission for a variation of the Construction and Service Employees Enterprise Agreement 2019. The applicants sought to alter certain provisions of the agreement to reflect changes in business operations and industry standards. The respondents were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and its members, who are employees covered by the enterprise agreement. The matter was heard in the Fair Work Commission, which has jurisdiction over employment matters under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed variations to the enterprise agreement were necessary and appropriate to address significant changes in the business environment and to ensure the continued competitiveness and viability of the applicant's operations. The Commission had to balance the applicant's need for flexibility and adaptability against the rights and protections afforded to employees under the Fair Work Act and the existing enterprise agreement. The Commission also considered whether the proposed changes were in line with the principles of good faith bargaining and whether they represented a genuine attempt to resolve the issues at hand.

In delivering its decision, the Commission noted that the applicant had demonstrated a genuine need for changes in response to significant shifts in its business operations and market conditions. The Commission was satisfied that the proposed variations were necessary to maintain the applicant's competitiveness and to address legitimate business needs. The Commission also found that the changes did not undermine the fundamental rights and protections of the employees and were in line with the principles of good faith bargaining. Consequently, the application for variation was approved, and the amended enterprise agreement was registered.

The final orders of the Commission included the approval of the proposed variations to the Construction and Service Employees Enterprise Agreement 2019, with specific changes to the agreement as outlined in the applicant's submission. The amended agreement was to be registered and would come into effect on the date specified by the Commission. The Commission also directed that the parties were to give notice of the registered agreement to all employees covered by it.

Otis Elevator Company Pty Ltd T/A Otis Elevator Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established