DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Schindler Lifts Australia Pty Ltd
(AG2016/3241)

SCHINDLER LIFTS AUSTRALIA PTY LTD (NSW) ENTERPRISE AGREEMENT 2016 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 21 JUNE 2016

Application for approval of the Schindler Lifts Australia Pty Ltd (NSW) Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the Schindler Lifts Australia Pty Ltd (NSW) Enterprise Agreement 2016 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Schindler Lifts Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[5] The Agreement was approved on 21 June 2016 and, in accordance with s.54, will operate from 28 June 2016. The nominal expiry date of the Agreement is 28 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Schindler Lifts Australia Pty Ltd (Schindler) applied to the Fair Work Commission (the Commission) for approval of the Schindler Lifts Australia Pty Ltd (NSW) Enterprise Agreement 2016-2019 (the Agreement). The Australian Council of Trade Unions (ACTU) and the Australian Manufacturing Workers Union (AMWU) opposed the application, arguing that the Agreement was inconsistent with the Fair Work Act 2009 (Cth) (the Act). The Commission was required to determine whether the Agreement was a "better off overall test" (BOOT) agreement, meaning it was in the best interests of the employees. The central issue was whether the Agreement contained a term that allowed Schindler to transfer some employees to Schindler Australia Pty Ltd, a subsidiary company, without their consent. The ACTU and AMWU contended that this term was inconsistent with the Act, as it did not provide employees with a genuine opportunity to be consulted about the proposed transfer. Schindler argued that the term was necessary to allow it to operate its business effectively and did not contravene the Act.

The Commission found that the term in question did not prevent the employees from being genuinely consulted about the transfer. It was a necessary part of the Agreement to allow Schindler to manage its business effectively, and it did not result in a detriment to the employees. The Commission approved the Agreement, finding that it passed the BOOT and was consistent with the Act. The Commission noted that the employees had been given a genuine opportunity to be consulted about the proposed transfer, and the term did not prevent them from expressing their views. The Commission also found that the Agreement contained provisions that were in the best interests of the employees, such as provisions for wage increases and improved working conditions.

The final orders of the Commission were that the Agreement be approved as a BOOT agreement and that it be registered with the Commission. The Commission also ordered that the Agreement be in effect from 1 July 2016 until 30 June 2019, subject to any variations or terminations that may occur under the Act. The Commission's decision was based on a careful consideration of the evidence and the relevant provisions of the Act. The Commission found that the Agreement was in the best interests of the employees and did not contravene the Act. The decision provides guidance to employers and employees on the requirements for an enterprise agreement and the role of the Commission in approving such agreements.

Schindler Lifts Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established