DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Otis Elevator Company Pty Ltd T/A Otis Elevator Company
(AG2020/1422)

OTIS ELEVATOR COMPANY PTY LTD (WESTERN AUSTRALIA) - CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 JUNE 2020

Application for variation of the Otis Elevator Company Pty Ltd (Western Australia) - Construction & Service Employees Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the Otis Elevator Company Pty Ltd (Western Australia) - Construction & Service Employees Enterprise Agreement 2018 (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 1 July 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 15 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Otis Elevator Company Pty Ltd, trading as Otis Elevator Company, to vary specific terms of the Otis Elevator Company Pty Ltd (Western Australia) – Construction & Service Employees Enterprise Agreement 2018. The applicant sought changes to the terms governing employee entitlements, particularly focusing on leave provisions and shift arrangements, in an effort to improve operational flexibility and efficiency. The respondents, represented by a union, opposed the application, arguing that any changes would adversely affect the employees' conditions of employment.

The central legal issues before the Commission were whether the proposed changes were justified under the criteria set out in the Fair Work Act 2009, specifically whether the changes were necessary to achieve a better outcome for the business and whether they were consistent with the principles of good faith bargaining. The Commission also had to consider the impact of the proposed changes on the employees and whether the changes maintained a balance between the interests of the employer and the employees.

In delivering its decision, the Commission examined the evidence presented by both parties, including the need for operational flexibility, the impact of the proposed changes on employee entitlements, and the efforts undertaken to negotiate the changes in good faith. The Commission concluded that while the applicant had demonstrated a legitimate business need for the changes, the proposed alterations to leave provisions and shift arrangements would have a significant adverse impact on the employees' conditions. The Commission found that the changes did not meet the threshold for being considered a better outcome for the business and that the application did not comply with the principles of good faith bargaining. As a result, the application for variation was dismissed.

The Fair Work Commission ordered that the application for variation of the Otis Elevator Company Pty Ltd (Western Australia) – Construction & Service Employees Enterprise Agreement 2018 be dismissed, and the agreement remain in effect as originally established. The decision underscores the importance of balancing the interests of both employers and employees in enterprise agreement variations, and the need for any proposed changes to be justified and negotiated in good faith.

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