Industrial Relations Commission of New South Wales CITATION : Western Murray Irrigation Limited Enterprise Agreement 2003 [2003] NSWIRComm 346 APPLICANT: PARTIES : Australian Workers' Union RESPONDENT: Western Murray Irrigation Limited FILE NUMBER: 5835 of 2003 CORAM: Sams DP CATCHWORDS : Application for approval of enterprise agreement - irrigation industry - agreement replaces unregistered agreement - wage increases - agreement to operate to the exclusion of awards - agreement to have retrospective operation - agreement ratified. LEGISLATION CITED : Industrial Relations Act 1996 Anti-Discrimination Act 1977 Review of the Principles For Approval of Enterprise Agreements (2000) 101 IR 332 Schweppes Cottees Enterprise Agreement 1997 (unreported, Schmidt J, IRC4383 of 1997, 30 September 1997) Snack Brands Australia - Smithfield Operations and Logistics North - Enterprise Agreement 1999 (unreported, Walton VP, IRC6937 of 1998, 11 January 1999 CASES CITED : AWARDS: Clerical and Administrative Employees (State) Award General Construction and Maintenance, Civil and Mechanical Engineering &c. (State) Award Metal Engineering an Associated Industries (State) Award HEARING DATES: 10/17/2003 EXTEMPORE JUDGMENT DATE : 10/17/2003 APPLICANT: Mr M Thistlethwaite LEGAL REPRESENTATIVES: RESPONDENT: Mr M Thistlethwaite by consent JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 17 October 2003 Matter No. IRC03/5835 Western Murray Irrigation Limited Enterprise Agreement 2003 Application by The Australian Workers' Union, New South Wales for approval of an enterprise agreement DECISION (ex tempore) NSWIRComm 346 1 Approval is sought from the Commission, pursuant to Div 2 Pt 2 of ch 2 of the Industrial Relations Act 1996 for the registration of an enterprise agreement between the Australian Workers' Union (the 'applicant'), and the Western Murray Irrigation Limited (the 'respondent'). The application was filed on 10 October 2003 and listed for hearing today, thereby fulfilling the requirements of section 34(3) of the Act. At the hearing of the matter, Mr M Thistlethwaite from the Australian Workers Union appeared for the applicant. He also appeared by consent for the respondent. 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 met. 3 The application was accompanied by the required statement of particulars and an affidavit sworn on 2 October 2003 by Mr Russell Collison, State Secretary of the Australian Workers' Union. The application sets out the relevant matters provided for in the Act and the Commission's principles governing the approval process for enterprise agreements. 4 The agreement covers all employees who would otherwise be employed under the terms of the the General Construction and Maintenance, Civil and Mechanical Engineering &c. (State) Award; Metal Engineering an Associated Industries (State) Award and The Clerical and Administrative Employees (State) Award and shall operate to the exclusion of the Award provisions. The agreement replaces an unregistered agreement between the parties. Its primary objective is to increase salaries for employees by four per cent. The agreement also provides the mandatory disputes procedure in cl 44 and includes other test case standards of this Commission. 5 The parties have asked for an operative date of 1 January 2003. Consistent with previous decisions of the Commission as presently constituted, and other members of the Commission, retrospective operation of enterprise agreements is permitted by the Act (See Snack Brands Australia - Smithfield Operations and Logistics North - Enterprise Agreement 1999 (unreported, Walton VP, IRC6937 of 1998, 11 January 1999) and Schweppes Cottees Enterprise Agreement 1997 (unreported, Schmidt J, IRC4383 of 1997, 30 September 1997). The operative date will therefore be that proposed by the parties. 6 I also note that the arrangements applying under the terms of the agreement, in particular the salary increase referred to in clause 18, have been paid since 1 January 2003. It is further noted that the agreement was approved in meetings of employees convened by the Union. 7 Having heard the submissions of the parties and reviewing the terms of the agreement, I am satisfied there is no net detriment to the employees otherwise bound by the terms and the conditions of the aforementioned Award, that the parties understand the effect of their agreement and the agreement was not entered into under duress. 8 Accordingly, pursuant to s35 of the Act, the Commission approves the agreement known as Western Murray Irrigation Limited Enterprise Agreement 2003, to take effect on 1 January 2003 and to remain in force until 30 June 2004. 9 These proceedings are concluded. Peter J Sams 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.