Subrina Sadique T/A Schindler Lifts Australia Pty Ltd

[2022] FWCA 3650

[2022] FWCA 3650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Subrina Sadique T/A Schindler Lifts Australia Pty Ltd

(AG2022/4102)

Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2022 – 2025

Building services
COMMISSIONER LEE	MELBOURNE, 19 OCTOBER 2022

Application for approval of the Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2022 – 2025

1. An application has been made for approval of an enterprise agreement known as the Schindler Lifts Australia Pty Ltd (SA) Service & Repairs Enterprise Agreement 2022 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Subrina Sadique T/A Schindler Lifts Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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

1. The Form F17 does not indicate whether employees were provided with access to, or a copy of the incorporated Building and Construction General On-site Award 2020 (the Award) in accordance with s.180(2) of the Act. This was raised with the parties, and in response the Applicant stated that: “The Vote notice (attached) makes reference to the incorporated award mentioning the updated title and the excluded clauses.” It is apparent that the incorporated Award was not provided to employees in accordance with s.180(2) of the Act. Further submissions were subsequently sought pertaining to the discretion conferred under s.188(2) of the Act. The CEPU made the following submissions in response:

“The CEPU would be supportive of the commissioner making a determination that employees had genuinely agreed to the proposed agreement and are not likely to be disadvantaged as a result of not being given a copy of the relevant award during the access period.

I represented CEPU members during the negotiations and am confident all employees understood the interaction between the Award and the Agreement. I also attended Schindler toolbox presentations on the proposed agreement held during paid time where employees were verbally informed that any additional information required regarding the proposed agreement would be provided by Schindler on request.”

1. The Applicant also made the following submissions:

“Incorporating the Award by way of reference into the agreement has been an ongoing practice over a number of previous agreements despite the fact that all of the terms specifically referred to in the Agreement are in excess of the Award conditions. The Award is used more to create a coherent structure, using the same Award terms (such as Fares & Travel) rather than to provide any benefit to the employees. All the terms in the Agreement are in excess of the rates in the Award. Employees have had access to the Award in past negotiations and during access periods and we believe they are familiar with the general Award terms & conditions.

Both the employer and the bargaining representative, the CEPU, and the delegates present in the negotiations spoke about the interaction between the award and the proposed agreement, and, more particularly, in various toolbox meetings where the terms of the agreement were explained in detail directly comparing the previous agreement.

The clauses which had significant changes in the new proposed agreement do not disadvantage the employees, the benefits and inclusions included are at a level which is higher than the award. We believe that the employees had a true understanding of this and are aware that they do not have any disadvantage compared to if they were to employed under the BCA.

To assist the Commissioner in determining whether to exercise the discretion granted in s188(2), we are also prepared to provide undertakings that we will provide a copy of the BCA to the employees and allow another 7 days for the employees to review the BCA and raise any questions relevant to the interaction between the award and that we will resolve those questions within a further 7 days.

On the basis also of the submissions from the CEPU, we would respectfully request that in all the circumstances the Commissioner exercise the discretion granted in s188(2) on the basis of the submission above.”

1. I indicated to parties that the undertaking offered by the Applicant would not be necessary. I have considered the above submissions and I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

[1] [2019] FWCFB 318.

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