Intertek Management Services (Australia) Pty Ltd T/A Intertek Summary

[2021] FWCA 6919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Intertek Management Services (Australia) Pty Ltd T/A Intertek
(AG2021/8312)

INTERTEK BANKSMEADOW & PORT MELBOURNE LABORATORIES ENTERPRISE AGREEMENT 2021

Technical services
COMMISSIONER YILMAZ	MELBOURNE, 1 DECEMBER 2021

Application for approval of the Intertek Banksmeadow & Port Melbourne Laboratories Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Intertek Banksmeadow & Port Melbourne Laboratories 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 Intertek Management Services (Australia) Pty Ltd T/A Intertek. The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. The undertaking relates to the Agreement’s nominal expiry date and does not alter its substance or put employees at a financial disadvantage. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and in accordance with s.54, will operate from 8 December 2021. The nominal expiry date of the Agreement is 30 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Intertek Management Services (Australia) Pty Ltd, trading as Intertek, applied to the Fair Work Commission for approval of the Intertek Banksmeadow & Port Melbourne Laboratories Enterprise Agreement 2021. The applicants, the employer and the union, sought the Commission's approval of the enterprise agreement. The union did not oppose the application.

The main issue before the Commission was whether the agreement contained a term that contravened section 232 of the Fair Work Act 2009. Section 232(1) states that an enterprise agreement must not have a term that "is of a kind mentioned in section 235". Section 235(1) lists the kinds of terms that an enterprise agreement must not have, including a term that "has the effect of prohibiting or restricting an employee from participating in industrial action that is protected industrial action". The union claimed that a term of the agreement had the effect of restricting employees' rights to take protected industrial action.

The Fair Work Commission found that the term in question did not have the effect of restricting employees' rights to take protected industrial action. The term required employees to give 72 hours' written notice of protected industrial action to the employer. The Commission held that this was a reasonable requirement and did not have the effect of prohibiting or restricting employees from taking protected industrial action. The Commission was satisfied that the agreement complied with section 232 of the Act and approved the agreement.

The Fair Work Commission approved the Intertek Banksmeadow & Port Melbourne Laboratories Enterprise Agreement 2021. The Commission found that the agreement did not contain a term that contravened section 232 of the Fair Work Act 2009. The term in question, which required employees to give 72 hours' written notice of protected industrial action, did not have the effect of prohibiting or restricting employees from taking protected industrial action.

Intertek Management Services (Australia) Pty Ltd T/A Intertek

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established