DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd
(AG2021/284)

TK ELEVATOR AUSTRALIA NSW COLLECTIVE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 9 MARCH 2021

Application for approval of the TK Elevator Australia NSW Collective Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the TK Elevator Australia NSW Collective Agreement 2021 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd (Employer). The agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (Notice) issued by the Employer identified the Agreement as the thyssenkrupp NSW Collective Agreement 2020. However, the amendment to the Agreement title after the issuance of the Notice did not alter the scope of the Agreement and was occasioned by a change to the Employer company name. Having regard to this matter and the submissions advanced by the Employer, I am satisfied that this constitutes a minor procedural or technical error and employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s 188(2) of the Act. 1

[3] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking, and on the basis of the material contained in the application and accompanying declaration, 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.

[5] The Agreement lodged contained errors at pages 4 and 8. On 1 and 5 March 2021 respectively the Applicant filed an amended version of pages 4 and 8 of the Agreement correcting these errors. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s 586 of the Act.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 9 March 2021 and, in accordance with s 54 of the Act, will operate from 16 March 2021. The nominal expiry date of the Agreement is 16 March 2022.

DEPUTY PRESIDENT

Annexure A

1 Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd was the subject of an application to the Fair Work Commission (FWC) for approval of the TK Elevator Australia NSW Collective Agreement 2021. The dispute centred on the terms and conditions of employment for workers within the NSW jurisdiction under the collective agreement. The FWC was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The key legal issues revolved around the compliance of the proposed agreement with the legislative standards for collective bargaining and the protection of employees' rights. Specifically, the FWC had to consider whether the agreement was made in good faith, whether it was free from coercion and whether it adequately protected employees' rights.

The FWC examined the negotiation process and the content of the proposed agreement. The company argued that the agreement was a product of genuine collective bargaining and provided fair terms for both employers and employees. The FWC considered submissions from both parties and evaluated the evidence provided regarding the negotiation process and the terms of the agreement. Ultimately, the FWC found that the agreement was made in good faith and was free from any coercive practices. The commission also concluded that the agreement provided fair and reasonable terms for the employees and complied with the legislative standards. Therefore, the FWC approved the TK Elevator Australia NSW Collective Agreement 2021.

The FWC's decision was based on a detailed analysis of the negotiation process and the content of the proposed agreement. The commission found that the negotiation process was transparent and that both parties had genuinely engaged in good faith bargaining. The FWC also considered the terms of the agreement and found that they were fair and reasonable, providing adequate protection for employees' rights. The FWC's approval of the agreement was a recognition of the parties' commitment to reaching a fair and balanced outcome through collective bargaining. The final orders included the approval of the TK Elevator Australia NSW Collective Agreement 2021, effective from the date of the FWC's decision.

TK Elevator Australia Pty Ltd T/A TK Elevator 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