DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Otis Elevator Company Pty Ltd T/A Otis Elevator Company
(AG2020/1600)

OTIS ELEVATOR COMPANY PTY LTD (SOUTH AUSTRALIA) – CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 25 JUNE 2020

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

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (South Australia) - 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 15 April 2020. 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 25 June 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 for a variation to the South Australian construction and service employees enterprise agreement. The application was made in the Fair Work Commission, which has jurisdiction over matters relating to workplace relations and employment standards. Otis Elevator Company sought changes to the terms and conditions of employment for its employees covered by the agreement, which was made in 2019. The company argued that the existing terms were no longer suitable due to changes in the industry and economic conditions, and that the proposed changes were necessary to maintain competitiveness and ensure the viability of the business.

The central legal issue before the Commission was whether the proposed variations to the enterprise agreement were justifiable under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the changes were necessary to ensure the continued operation of the business and whether they represented a genuine attempt to bargain in good faith. The Commission also had to assess whether the proposed changes would have a detrimental impact on the employees and whether there were any alternative measures that could be adopted to achieve the desired outcomes without resorting to changes to the enterprise agreement.

After hearing evidence from both parties and considering the relevant legal principles, the Commission found that the proposed variations to the enterprise agreement were justifiable. The Commission determined that the changes were necessary to ensure the continued operation of the business and that the company had made a genuine attempt to bargain in good faith. The Commission also found that the proposed changes would not have a significant detrimental impact on the employees and that there were no alternative measures that could be adopted to achieve the desired outcomes. As a result, the application for variation was approved, and the changes to the enterprise agreement were implemented. The Fair Work Commission's decision provides guidance on the factors that it will consider when determining whether to approve an application for variation of an enterprise agreement.

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