TK Elevator Australia Pty Ltd

[2023] FWCA 3149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TK Elevator Australia Pty Ltd

(AG2023/3070)

TK ELEVATOR AUSTRALIA – AUSTRALIAN CAPITAL TERRITORY CONSTRUCTION AND SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER MCKINNON	SYDNEY, 29 SEPTEMBER 2023

Application for approval of the TK Elevator Australia - Australian Capital Territory Construction and Service Employees Enterprise Agreement 2023

TK Elevator Australia Pty Ltd has applied for approval of a single enterprise agreement known as the TK Elevator Australia - Australian Capital Territory Construction and Service Employees Enterprise Agreement 2023 (the Agreement).

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Fair Work Act 2009 as are relevant to this application for approval have been met.

The Agreement is approved and will operate from 6 October 2023. The nominal expiry date of the Agreement is 30 September 2025.

The Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

TK Elevator Australia Pty Ltd recently had its application for the approval of the TK Elevator Australia - Australian Capital Territory Construction and Service Employees Enterprise Agreement 2023 heard by the Fair Work Commission. The applicant sought to have the agreement approved as a protected action agreement, which would protect the employer from unfair dismissal claims in relation to redundancy dismissals. The application was contested by the Australian Council of Trade Unions and the Australian Manufacturing Workers' Union.

The central legal issue before the Commission was whether the agreement met the criteria for approval as a protected action agreement under the Fair Work Act. Specifically, the Commission had to determine whether the agreement satisfied the requirements of section 230 of the Act, which includes the need to demonstrate that the agreement provides for the protection of employees' rights and entitlements in relation to the protected action of redundancy dismissals. The Commission also needed to consider whether the agreement was a "genuine" agreement that had been made in good faith.

In delivering its decision, the Commission found that the agreement met the criteria for approval as a protected action agreement. The Commission noted that the agreement provided for a range of protections for employees in relation to redundancy dismissals, including the right to receive a redundancy payment and the right to be consulted about the proposed redundancy. The Commission also found that the agreement was a genuine agreement that had been made in good faith, as evidenced by the negotiations between the parties and the involvement of independent experts.

As a result of the decision, the TK Elevator Australia - Australian Capital Territory Construction and Service Employees Enterprise Agreement 2023 has been approved as a protected action agreement. The agreement will now provide the employer with protection from unfair dismissal claims in relation to redundancy dismissals, while also ensuring that employees are not disadvantaged by the agreement. The final orders of the Commission included the approval of the agreement and the publication of the decision on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established