DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Testing and Inspection Services (Vic) Pty Ltd
(AG2015/1423)

ITEST NDT UNION COLLECTIVE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 2 JULY 2015

Application for approval of the iTest NDT Union Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the iTest NDT Union Collective Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Independent Testing and Inspection Services (Vic) Pty Ltd. The agreement is a single-enterprise agreement.

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 9 July 2015. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Independent Testing and Inspection Services (Vic) Pty Ltd, an employer, brought an application to the Fair Work Commission for approval of the iTest NDT Union Collective Agreement 2014, which was negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement contained a clause that required employees to work overtime on Christmas Day and Good Friday. The CFMEU sought to have this clause removed, arguing that it contravened the provisions of the Fair Work Act 2009, which provide that employees are not obliged to work on public holidays unless there is an agreement in place that requires them to do so. The Commission was required to determine whether the clause in question was contrary to the Act and, if so, whether it could be removed without invalidating the rest of the agreement.

The Commission considered the relevant provisions of the Act and the principles of severability and interpretative preference. It found that the clause requiring employees to work overtime on Christmas Day and Good Friday was contrary to the Act, which provides that employees are not obliged to work on public holidays unless there is an agreement in place that requires them to do so. The Commission also considered the principle of severability, which provides that if a clause in an agreement is invalid, the rest of the agreement may still be valid if it can be interpreted without the invalid clause. In this case, the Commission found that the clause could be removed without affecting the validity of the rest of the agreement.

The Commission approved the agreement with the clause removed. It found that the agreement, as modified, did not contravene the Act and was therefore capable of being approved. The employer and the union were directed to give written notice of the approved agreement to the Commission within 14 days of the decision. The Commission also directed that the agreement be registered with the Commission and that a copy be provided to the employer, the union, and each employee covered by the agreement. The Commission noted that the agreement was an improvement on the previous agreement, which had contained more onerous provisions for employees, and that the modified agreement was fair and reasonable.

Independent Testing and Inspection Services (Vic) 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