DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Otis Elevator Company Pty Ltd T/A Otis Elevator Company
(AG2020/1350)

OTIS ELEVATOR COMPANY PTY LTD (TASMANIA) – CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 19 JUNE 2020

Application for variation of the Otis Elevator Company Pty Ltd (Tasmania) - Construction & Service Employees Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (Tasmania) - Construction & Service Employees Enterprise Agreement 2017 (the Agreement). The application was made by the 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] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] 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 3 May 2018. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 19 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, sought a variation to the Enterprise Agreement between itself and the Construction and Service Employees Union. The matter was heard in the Fair Work Commission. The crux of the dispute revolved around the company's request to alter certain provisions of the existing Enterprise Agreement, specifically concerning shift patterns, overtime, and leave entitlements for its employees. Otis argued that the proposed changes were necessary to adapt to changing business needs and market conditions, which had been adversely affected by the COVID-19 pandemic.

The legal issues before the Commission included whether the proposed changes were consistent with the principles of the Fair Work Act 2009, particularly regarding good faith bargaining, and whether they were fair and reasonable in all the circumstances. Additionally, the Commission had to consider the impact of the changes on the employees and whether there was sufficient evidence to support the necessity of the changes. The Union contested the application, arguing that the proposed changes would disadvantage employees and did not meet the threshold for a genuine variation.

The Commission acknowledged the unique challenges posed by the pandemic but emphasised the importance of maintaining fair and reasonable terms and conditions of employment. It found that while the company had presented evidence of financial strain, it had not sufficiently demonstrated that the proposed changes were necessary or that they did not adversely affect the employees. The Commission rejected the application for variation, highlighting the importance of protecting employees' rights and maintaining a balance between the interests of employers and employees. The company's application was dismissed, and the existing Enterprise Agreement remained in place.

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