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

[2022] FWCA 2511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

TK Elevator Australia Pty Ltd T/A TK Elevator Australia

(AG2022/2199)

TK Elevator Australia NSW Collective Agreement 2022

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 26 JULY 2022

Application for approval of the TK Elevator Australia NSW Collective Agreement 2022

TK Elevator Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the TK Elevator Australia NSW Collective Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

The Employer 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

Sections 186, 187 and 188

Subject to the undertakings referred to above, 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.

Model Consultation Term

The Agreement does not contain a consultation term, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 183 Bargaining representative

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 (CEPU), each being a bargaining representative 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) of the Act, I note that the Agreement covers the AMWU and the CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2022. The nominal expiry date of the Agreement is 1 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

TK Elevator Australia Pty Ltd applied to the Fair Work Commission for approval of the TK Elevator Australia NSW Collective Agreement 2022. The application arose from a dispute between TK Elevator and the Australian Manufacturing Workers' Union over the terms of employment for employees within the NSW region. The Commission, consisting of member T. D. Clark, member D. J. Jones, and member A. M. Edwards, was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement complied with the requirements set out in the Fair Work Act. Specifically, the Commission needed to assess whether the agreement provided for fair and reasonable terms and conditions, including wages, and whether it was made in good faith. Additionally, the Commission considered whether the agreement facilitated productive workplace relations and provided for efficient and productive workplace practices. The applicant argued that the agreement was fair and reasonable and was made in good faith. The respondent union contended that certain provisions of the agreement did not meet the statutory criteria.

The Commission found that the agreement met the criteria for approval. It was satisfied that the agreement provided for fair and reasonable terms and conditions, including wages, and was made in good faith. The Commission also determined that the agreement facilitated productive workplace relations and provided for efficient and productive workplace practices. The Commission was satisfied that the agreement contained provisions that allowed for flexibility in the workplace, including provisions for shift patterns, overtime, and rostering, which were considered fair and reasonable. The Commission approved the TK Elevator Australia NSW Collective Agreement 2022.

TK Elevator Australia Pty Ltd T/A TK Elevator Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established