Industrial Relations Commission of New South Wales CITATION: Penford Australia Limited - Tamworth - Enterprise Agreement 2004 [2005] NSWIRComm 245 APPLICANT Penford Australia Ltd - Tamworth RESPONDENTS PARTIES: National Union of Workers, New South Wales Branch Australian Workers' Union, New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch FILE NUMBER(S): 2976 of 2005 CORAM: Sams DP CATCHWORDS: Application for approval of enterprise agreement - sixth agreement between the parties at this site - agreement provides for wage increases and changes to redundancy provisions - agreement to have retrospective application - agreement approved for registration. Industrial Relations Act 1996 Anti Discrimination Act 1977 LEGISLATION CITED: AWARDS: Starch Manufacturers &c (State) Award 325 IG 370 Metal and Industry New South Wales Interim Award 325 IG 209 Electricians &c (State) Award 325 IG 808 CASES CITED: Review of the Principles for Approval of Enterprise Agreements (2000) 101 IR 332 HEARING DATES: 06/23/2005 EXTEMPORE JUDGMENT DATE: 06/23/2005 APPLICANT Mr S McCarthy, Agent McCarthy Ausgroup Pty Ltd LEGAL REPRESENTATIVES: RESPONDENTS Mr S Mueller, National Union of Workers, New South Wales Branch Mr J Clements, Australian Workers' Union, New South Wales Branch Ms N Kastoun, Electrical Trades Union of Australia, New South Wales Branch JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 23 June 2005 Matter No. IRC05/2976 Penford Australia Limited - Tamworth - Enterprise Agreement 2004 Application by Penford Australia Limited for approval of Enterprise Agreement DECISION (ex tempore) [2005] NSWIRComm 245 1 Approval is sought from the Commission, pursuant to Div 2 Pt 2 ch 2 of the Industrial Relations Act 1996 ('the Act') for the approval of an Enterprise Agreement between Penford Australia Limited - Tamworth and the National Union of Workers New South Wales Branch, the Australian Workers' Union New South Wales Branch and the Electrical Trades Union of Australia New South Wales Branch on behalf of their members employed at the site. The application was filed on 10 June 2005 and listed for hearing today, 23 June 2005, thereby fulfilling the requirements of s34(3) of the Act. 2 At the hearing of the matter, Ms S McCarthy, Agent, appeared for the applicant company, Mr S Mueller for the National Union of Workers, Mr J. Clements for the Australian Workers' Union and Ms N Kastoun for the Electrical Trades Union. 3 Before approving an enterprise agreement, the Commission must be satisfied that the statutory requirements as outlined in the Act, the Anti Discrimination Act 1977 and the Enterprise Agreement Principles formulated by a Full Bench of the Commission in Review of the Principles for Approval of Enterprise Agreements (2000) 101 IR 332 have been satisfied. 4 The application is accompanied by the required affidavit and statement of particulars, the affidavit being deposed to on 8 June by Mr Henry Segerius, the New South Wales Manager of the company. The affidavit sets out the relevant matters provided for in the Act and the Commission's Principles governing the approval process for enterprise agreements. 5 The Agreement is to cover some 72 employees who would be otherwise employed pursuant to the terms of the Starch Manufacturers &c (State) Award, the Metal and Industry New South Wales Interim Award and the Electricians &c (State) Award. Where the Agreement is silent, the parent Awards shall apply. 6 The Agreement has been characterised as a rollover agreement, this being the sixth agreement negotiated between the parties for the site. The new agreement provides for two 2.5 per cent wage increases over the life of the agreement, being payable from 1 April this year and 1 April 2006. There has also been a change made to the redundancy provision. The Commission was advised that regrettably there have been redundancies at the site in recent times. 7 Having heard the submissions of the parties and upon reviewing the terms of the Agreement and being further advised by the Unions that the employees have voted to accept the terms of the Agreement, I am satisfied that the parties understand the effect of their Agreement, that the Agreement was not entered into under duress, and that there is no net detriment to the employees otherwise bound by the terms and conditions of the relevant Awards. 8 In all other respects I am satisfied that the legislative requirements for approval have been met and the Commission's Principles dealing with Enterprise Agreements have been complied with. 9 In accordance with previous decisions of the Commission, there is no legislative prohibition for enterprise agreements having retrospective application. Mr McCarthy has advised that for practical purposes the agreement has operated from 1 October last year. In those circumstances I am prepared to approve the agreement applying on and from 1 October 2004 to remain in force for a period of two years thereafter, expiring on 30 September 2006. The Commission was further advised the agreement replaces a previous agreement, the approval of which was matter IRC 5743 of 2002. I formally rescind the former agreement. 10 Pursuant to s35 of the Act, I therefore approve an Enterprise Agreement to be known as the Penford Australia Limited - Tamworth - Enterprise Agreement 2004. 11 These proceedings are thereby concluded. Peter J Sams, AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.