TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd Summary

[2022] FWCA 1420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd

(AG2022/1117)

TK Elevator Australia Perth Service & Modernisation/Installation Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MOLTONI	BRISBANE, 27 APRIL 2022

Application for approval of the TK Elevator Australia Perth Service & Modernisation/Installation Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the TK Elevator Australia Perth Service & Modernisation/Installation Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TK Elevator Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to contain the name of the previous Agreement in error. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

Noting clause 3.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

TK Elevator Australia Pty Ltd, trading as TK Elevator Australia, applied to the Fair Work Commission for the approval of the TK Elevator Australia Perth Service & Modernisation/Installation Enterprise Agreement 2021. The application involved the agreement reached between TK Elevator and its employees, specifically those classified as service and modernisation/installation workers in the Perth region. The dispute centred around the procedural fairness of the agreement and whether it met the necessary standards for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement had been negotiated in good faith, as required by the Act. The Commission had to consider whether TK Elevator and the employees had engaged in a genuine process of negotiation and whether the terms of the agreement reflected a fair and reasonable outcome. Additionally, the Commission examined whether the agreement complied with the procedural requirements outlined in the Act, including the provision of necessary information to the employees and the opportunity for them to review and respond to the proposed terms.

The Fair Work Commission determined that the agreement had been negotiated in good faith and met the procedural requirements of the Act. The Commission found that TK Elevator had provided adequate information to the employees and allowed sufficient time for consultation and feedback. The terms of the agreement were considered fair and reasonable, reflecting the needs and interests of both parties. The Commission concluded that the agreement complied with all statutory requirements and approved it accordingly.

The Fair Work Commission approved the TK Elevator Australia Perth Service & Modernisation/Installation Enterprise Agreement 2021, confirming its validity and enforceability under the Fair Work Act. The approval signifies that the agreement can be implemented, providing a clear framework for the employment conditions of the affected employees.

TK Elevator Australia Pty Ltd T/A TK Elevator Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established