Industrial Relations Commission of New South Wales CITATION: Linfox - TWU (Foster's Group Transport - Villawood) Enterprise Agreement 2005 and other Linfox - TWU Enterprise Agreements [2005] NSWIRComm 446 APPLICANT Linfox Australia Pty Ltd PARTIES: RESPONDENT Transport Workers Union of Australia, New South Wales Branch FILE NUMBER(S): IRC 5422, 5421 & 5586 of 2005 CORAM: Sams DP CATCHWORDS: Three applications for approval of enterprise agreements - all agreements in identical terms - negotiations with Union - agreements site specific at various locations - agreements to have retrospective application - three year life - agreements approved for registration. Industrial Relations Act 1996 Anti Discrimination Act 1977 LEGISLATION CITED: AWARD Transport Industry (State) Award 343 IG 390 CASES CITED: Review of the Principles for Approval of Enterprise Agreements (2000) 101 IR 332 HEARING DATES: 11/10/2005 EXTEMPORE JUDGMENT DATE: 11/10/2005 APPLICANT Mr J Fox. solicitor Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr A O'Donnell Transport Workers Union of Australia, New South Wales Branch JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 10 November 2005 Matter No IRC05/5422 LINFOX - TWU (FOSTERS GROUP TRANSPORT - VILLAWOOD) ENTERPRISE AGREEMENT 2005 Matter No IRC05/5421 LINFOX - TWU (LIDCOMBE DISTRIBUTION CENTRE) ENTERPRISE AGREEMENT 2005 Matter No IRC05/5586 LINFOX - TWU (ARNOTTS' HUNTINGWOOD) ENTERPRISE AGREEMENT 2004 Applications by Linfox Australia Pty Ltd for approval of enterprise agreements DECISION (ex tempore) [2005] NSWIRComm 446 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 registration of three enterprise agreements between Linfox Australia Pty Ltd and the Transport Workers' Union of Australia, New South Wales Branch. The first two applications were filed on 21 October 2005 and the second on 1 November. The three were listed for hearing on 10 November, thereby fulfilling the requirements of s34(3) of the Act. At the hearing of the matter Mr J Fox, Solicitor, appeared for Linfox Australia Pty Ltd and Mr A O'Donnell represented the Union. 2 Before approving an enterprise agreement, the Commission must be satisfied that the statutory requirements, as outlined in the Industrial Relations Act 1996, 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. 3 Each application is accompanied by the required affidavit of Mr Laurie D'Apice, National Business Manager of Linfox Australia, deposed to on 21 October and 1 November 2005. The affidavits set out the matters provided for in the Act and the Commission's Principles governing the approval process for enterprise agreements. The Agreements were negotiated through extensive consultation with the Union, its members and local management and reflect mutually agreed outcomes. 4 The Agreements are to cover Linfox employees at the various named sites who are members of the Transport Workers' Union and engaged under the Transport Industry (State) Award, 343 IG 390 ('the Award'). The Agreements are to be read in conjunction with the award but will prevail over the award to the extent of any inconsistency. The Agreements all provide for the mandatory disputes settlement procedure at cl 20. 5 The Agreements are in like terms, save for operative dates and certain locally specific matters, to a number of previous Enterprise Agreements between the Union and Linfox which have been previously approved by the Commission as presently constituted and other members of the Commission. The most recent enterprise agreements in that regard were approved on 3 March this year. 6 Having heard the submissions of the parties and upon reviewing the terms of the Agreements and being aware of the nature of the agreements applying or having been approved already by the Commission, I am satisfied that the parties understand the effect of their Agreements, that the Agreements were 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 Award. 7 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. 8 In accordance with previous decisions of the Commission, there is no legislative prohibition for enterprise agreements having retrospective application. Therefore, at the request of the parties, the Agreements shall apply from the various dates identified in the documents and all shall remain in force for three years. 9 Pursuant to s35 of the Act, I approve the abovenamed Enterprise Agreements to take effect on and from the dates referred to and to remain in force for three years thereafter. 10 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.