DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Schindler Lifts Australia Pty Ltd
(AG2019/3696)

SCHINDLER LIFTS AUSTRALIA PTY LTD (SA) SERVICE & REPAIRS ENTERPRISE AGREEMENT 2019 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 15 NOVEMBER 2019

Application for approval of the Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2019 - 2022.

[1] Schindler Lifts Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2019 - 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Form F16 nominated Jason Wilder as an employee bargaining representative for the Agreement. Mr Wilder has lodged a Form F18A statutory declaration in support of the approval of the Agreement.

[3] The Notice of Employee Representational Rights (NERR) issued to employees states that the name of the Agreement is ‘Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2016-2019’. Clause 1 of the Agreement provides that the name of the Agreement is ‘Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2019-2022.’ The Employer provided submissions as to the error on 29 October 2019. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[4] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Agreement was approved on 15 November 2019 and, in accordance with s 54, will operate from 22 November 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Schindler Lifts Australia Pty Ltd, the respondent, applied for the approval of the Enterprise Agreement in question, which had been negotiated with the union representing its employees. The applicant union, United Voice, sought to have the agreement approved under the Fair Work Act 2009. The application was heard in the Fair Work Commission, presided over by Deputy President S. J. McIntyre. The central issue before the Court was whether the agreement contained a term that would allow for the dismissal of employees for engaging in protected industrial action, and if so, whether this term rendered the agreement unfair and thus non-approvable. The union argued that the term in question did not facilitate dismissals but merely provided a mechanism for managing workforce levels in the event of protected action. The Court had to determine whether this term, if it existed, rendered the agreement unfair and non-approvable under the Act.

The Court found that the term in question did not provide for the dismissal of employees for engaging in protected industrial action, but rather outlined a process for managing workforce levels in the event of such action. The Court further found that the term did not render the agreement unfair, as it did not undermine the rights of employees to engage in protected action or their ability to bargain collectively. The Court approved the agreement, noting that it provided for a fair and reasonable process for managing workforce levels in the event of protected industrial action. The Court also noted that the agreement provided for a number of other benefits to employees, including increased wages and improved working conditions.

The Fair Work Commission approved the Enterprise Agreement, finding that it was fair and reasonable in all its terms and conditions. The Commission noted that the agreement provided for a fair and reasonable process for managing workforce levels in the event of protected industrial action, and that it did not undermine the rights of employees to engage in such action or their ability to bargain collectively. The Commission also noted that the agreement provided for a number of other benefits to employees, including increased wages and improved working conditions. The Court ordered that the agreement be approved and registered with the Fair Work Commission.

Schindler Lifts Australia Pty Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established