Industrial Relations Commission of New South Wales CITATION : Garde Pty Ltd Enterprise Agreement 2004-2005. Application by Electrical Trades Union of Australia, New South Wales for approval of Enterprise Agreement [2004] NSWIRComm 276 APPLICANT: Electrical Trades Union of Australia PARTIES : RESPONDENT: Garde Pty Ltd FILE NUMBER: IRC 4883 of 2004 CORAM: Backman J CATCHWORDS : Application for approval of enterprise agreement - Electrical Trades Union employees - development and implementation of workplace reform strategies - Commission principles - agreement approved for registration LEGISLATION CITED : Industrial Relations Act 1996 Anti Discrimination Act 1977 CASES CITED : Re Review of the Principles for Approval of Enterprise Agreemnts (2000) 101 IR 332 HEARING DATES: 09/17/2004 EXTEMPORE JUDGMENT DATE : 09/17/2004 APPLICANT: Ms Natalie Kerr LEGAL REPRESENTATIVES: RESPONDENT No appearance JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Backman J 17 September 2004 Matter No IRC 4883 of 2004 Garde Pty Limited Enterprise Agreement 2004-2005. Application by Electrical Trades Union of Australia, New South Wales Branch for approval of Enterprise Agreement. EX TEMPORE JUDGMENT [2004] NSWIRComm 276 1 The Electrical Trades Union of Australia, New South Wales Branch ("the applicant") has applied for approval from the Commission of an enterprise agreement, entitled Garde Pty Ltd Enterprise Agreement 2004-2005 ("the agreement"). The approval is sought pursuant to Division 2, Part 2, Chapter 2 of the Industrial Relations Act 1996 ("the Act"). 2 The parties to the agreement are the applicant and Garde Pty Ltd ("the respondent employer"). 3 The application was lodged with the Industrial Registrar on 12 August 2004 and listed for hearing today, 17 September 2004. 4 Before approving an enterprise agreement, the Commission must satisfy itself that the relevant statutory requirements under the Act and under the Anti-Discrimination Act 1977 have been complied with. As a further pre-requisite for approval, the Commission must also follow the principles as formulated by the Full Bench in Re Review of the Principles for Approval of Enterprise Agreements 2000, 101 IR 332 ("the Commission's Principles). 5 The application with an attached statement of particulars is accompanied by an affidavit of Bernie Riordan sworn on 9 August 2004 ("the affidavit"). The affidavit deposes to various matters which purport to deal with the requirements under the Act, the Anti-Discrimination Act and with the Commission's principles. 6 An examination of the terms of the agreement reveal that it complies with all relevant requirements in that it contains an anti-discrimination clause (Clause 11), a dispute settlement procedure (Clause 12) and a consultative mechanism, namely the establishment of a Consultative Committee with the stated purpose of consulting, developing, recommending and assisting in the implementation of strategies and measures designed to achieve the objectives of the enterprise agreement (Clause 13). 7 The agreement also satisfies the requirements pursuant to s35(1) of the Act as set out in the Commission's Principles, namely, that there is not provided, on balance, a net detriment to employees covered by the agreement when compared with the aggregate package of conditions which would otherwise apply under the Electrical Electronic & Communications Contracting Industry (State) Award ("the Award"). In this regard, reference is made to a table annexed to Mr Riordan's affidavit which outlines comparisons between the agreement and the Award. 8 In conformance with the Commission's Principles, there is also a clause contained in the agreement concerning a commitment by the respondent employer to make all management and employees aware of all changes to the Occupational Health & Safety Act, 2000 and Regulations (Clause 37). 9 The affidavit deposes to other matters in compliance with the relevant requirements, including statutory requirements with respect to leave provisions. In addition the affidavit informs that during the negotiation phase of the agreement, details of that agreement were discussed with employees intended to be covered by it. Further, that those employees were advised first that the applicant and respondent employer would seek to have the agreement registered by the Commission and secondly, that those employees were advised of the consequences of approval by the Commission. 10 Having heard the applicant (I note that the respondent employer is not present), and following my examination of the proposed agreement and the affidavit, I am satisfied that the parties have been involved in negotiation processes; the parties understand the nature and effect of the agreement; the agreement was not entered into under duress; and there has been compliance with the relevant statutory requirements. 11 I note that under Clause 7, it is envisaged that the agreement will take effect from the date of registration. Clauses 14 and 15 make provision for certain events to take place after 1 April 2004. Schedule A in combination with Clauses 16 and 28 makes provision for certain events to take place on or after 1 April 2004. Clause 20 makes provision for weekly contribution rates for employees (excluding apprentices and trainees) engaged upon construction work to commence from 1 October 2002 for one prescribed rate and from 1 October 2003 for another prescribed rate. 12 In accordance with decisions of the Commission, there is no legislative impediment to the agreement operating retrospectively. 13 I therefore make the following orders: Pursuant to s35 of the Act, I approve the Garde Pty Ltd Enterprise Agreement 2004-2005 to commence operation with respect to Clauses 14 and 15 after 1 April 2004; with respect to Clauses 16 and 28 and Schedule A on or after 1 April 2004; with respect to Clause 20 from 1 October 2002; and, in all other respects from 17 September 2004. The agreement is to remain in force until 30 October 2005. 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.