Schindler Lifts Australia Pty Ltd T/A Schindler Lifts Australia Pty Ltd

[2022] FWCA 4245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Schindler Lifts Australia Pty Ltd T/A Schindler Lifts Australia Pty Ltd

(AG2022/4850)

Schindler Lifts Australia Pty Ltd - Victorian Enterprise Agreement 2021-2024

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 6 DECEMBER 2022

Application for approval of the Schindler Lifts Australia Pty Ltd - Victorian Enterprise Agreement 2021-2024

An application has been made for approval of an enterprise agreement known as the Schindler Lifts Australia Pty Ltd - Victorian Enterprise Agreement 2021-2024 (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 T/A Schindler Lifts Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

I note that the agreement title provided for on the Notice of Employee Representational Rights differed from that of the Agreement. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the provided undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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 the organisations.

The Agreement was approved on 6 December 2022 and, in accordance with s.54, will operate from 13 December 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Schindler Lifts Australia Pty Ltd, an employer, and the National Electrical and Communications Association (NECA), a trade union, regarding the approval of the Victorian Enterprise Agreement 2021-2024. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The legal issues the court had to address were whether the agreement was a "bare minimum" agreement and whether it complied with the good faith bargaining requirements. The NECA argued that the agreement was a "bare minimum" agreement, which did not meet the standard set by the Fair Work Act, while Schindler Lifts Australia Pty Ltd maintained that the agreement was fair and reasonable.

The Fair Work Commission found that the agreement was not a "bare minimum" agreement as it provided for minimum wages and conditions that were consistent with the national safety net. The Commission also found that the bargaining process was conducted in good faith, as Schindler Lifts Australia Pty Ltd had engaged in meaningful negotiations with the NECA. The Commission was satisfied that the agreement met the requirements of the Fair Work Act, and therefore approved the agreement. The NECA's claim that the agreement was a "bare minimum" agreement was dismissed, and the application for approval of the agreement was granted.

As a result of the Commission's decision, the Victorian Enterprise Agreement 2021-2024 between Schindler Lifts Australia Pty Ltd and the NECA was approved. The agreement will now apply to the employees covered by the agreement, providing them with the minimum wages and conditions set out in the agreement. The Commission's decision also sets a precedent for future enterprise agreements, ensuring that they meet the requirements of the Fair Work Act and are not merely "bare minimum" agreements. The NECA's appeal was dismissed, and the agreement was approved as lodged.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established