Independent Testing and Inspection Services Pty Ltd T/A ITest NDT Summary

[2024] FWCA 3161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Testing and Inspection Services Pty Ltd T/A ITest NDT

(AG2024/2967)

AMWU & ITEST (INDEPENDENT TESTING & INSPECTION SERVICES (VIC) PTY LTD) METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023 - 2026

Test Industry
COMMISSIONER ALLISON	MELBOURNE, 2 SEPTEMBER 2024

Application for approval of the AMWU & ITEST (Independent Testing & Inspection Services (Vic) Pty Ltd) Metal & Engineering On-Site Construction Agreement 2023 - 2026

Independent Testing and Inspection Services Pty Ltd T/A ITest NDT has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a greenfields agreement known as the AMWU & ITEST (Independent Testing & Inspection Services (Vic) Pty Ltd) Metal & Engineering On-Site Construction Agreement 2023 - 2026 (the Agreement).

The Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The Agreement covers the AMWU.

This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by Independent Testing and Inspection Services Pty Ltd, trading as ITest NDT, in conjunction with the Australian Manufacturing Workers' Union (AMWU), to have their Metal & Engineering On-Site Construction Agreement 2023-2026 approved. The application was brought before the Fair Work Commission, and the primary focus was on the procedural and substantive fairness of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the necessary criteria for approval, particularly concerning its compliance with the requirements for good faith bargaining and its benefits for the employees.

The court was tasked with determining whether the agreement represented the outcome of good faith bargaining between the parties, whether it was made in a manner that was procedurally fair, and whether the terms of the agreement were substantively fair for the employees. The court also had to consider if the agreement provided adequate protections and benefits to the employees, aligning with the objectives of the Fair Work Act.

In assessing the application, the court examined the evidence presented by both parties, focusing on the process of bargaining and the contents of the agreement. The court found that the agreement was the result of genuine and sincere negotiations conducted in good faith. It was noted that the bargaining process was procedurally fair, with both parties having equal opportunity to present their views and negotiate terms. The court also determined that the agreement provided fair and reasonable benefits to the employees, meeting the standards set out in the Fair Work Act. Consequently, the court approved the Metal & Engineering On-Site Construction Agreement 2023-2026.

The final orders of the court included the approval of the Metal & Engineering On-Site Construction Agreement 2023-2026, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and both parties were directed to comply with its terms. The court's decision ensured that the agreement would operate as a valid and enforceable instrument under the Fair Work Act, providing a framework for the employment conditions of the employees covered by the agreement.

Independent Testing and Inspection Services Pty Ltd T/A ITest NDT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established