Schindler Lifts Australia Pty Ltd

[2019] FWCA 6664

[2019] FWCA 6664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Schindler Lifts Australia Pty Ltd
(AG2019/3210)

SCHINDLER LIFTS AUSTRALIA PTY LTD (ACT BRANCH) ENTERPRISE AGREEMENT 2019-2022

Electrical contracting industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 24 SEPTEMBER 2019

Application for approval of the Schindler Lifts Australia Pty Ltd (ACT Branch) Enterprise Agreement 2019-2022.

[1] Schindler Lifts Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Schindler Lifts Australia Pty Ltd (ACT Branch) Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. Pursuant to s.190 of the Act, I accept the Applicant's undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[3] The Agreement does not contain a consultation term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) being a bargaining representative for the Agreement has given notice under s.183 of the Act that the Union wants to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers that organisation.

[5] It is noted that clause 4 of the Agreement states the Agreement shall start to operate on the first full pay period to commence seven days after it is approved by the Commission. It was raised with the Applicant that this is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. The Applicant advised that it was agreed the Agreement would operate on the first Monday following the period of seven days after its approval to coincide with the commencement of its weekly pay cycle, in order to avoid any confusion amongst staff resulting from the Applicant adjusting pay rates during a pay cycle. Further, the Applicant stated the agreement would operate from 7 October 2019 if the agreement was approved on today’s date. It is noted that the Agreement will operate from 7 October 2019.

[6] I am satisfied that each of the requirements of ss.l86, 187 and 188 as are relevant to this application for approval have been met.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 7 October 2019. The nominal expiry date of the Agreement is 30 September 2022.

DEPUTY PRESIDENT

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