Industrial Relations Commission of New South Wales CITATION: Asplundh Tree Expert (Australia) Pty Ltd New South Wales Enterprise Agreement 2005-2006 [2005] NSWIRComm 256 APPLICANT Electrical Trades Union of Australia, New South Wales Branch PARTIES: RESPONDENT Asplundh Tree Expert (Australia) Pty Ltd FILE NUMBER(S): 2889 of 2005 CORAM: Sams DP CATCHWORDS: Application for approval of enterprise agreement - agreement to cover employees engaged to perform tree clearing and associated duties for New South Wales electrical distribution and transmission industry - wages and conditions - agreement to have retrospective effect - agreement approved for registration. Industrial Relations Act 1996 Anti Discrimination Act 1977 LEGISLATION CITED: AWARD Electrical Electronic and Communications Contracting Industry (State) Award 318 IG 645 CASES CITED: Review of the Principles for Approval of Enterprise Agreement (2000) 101 IR 332 HEARING DATES: 06/23/2005 EXTEMPORE JUDGMENT DATE: 06/23/2005 APPLICANT Ms N Kastoun LEGAL REPRESENTATIVES: Electrical Trades Union of Australia, New South Wales Branch (and mentioning on behalf of respondent) JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 23 July 2005 Matter No. IRC05/2889 ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2005-2006 Application by the Electrical Trades Union of Australia, New South Wales Branch for approval of Enterprise Agreement Ex Tempore Decision [2005] NSWIRComm 256 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 the Electrical Trades Union of Australia, New South Wales Branch and Asplundh Tree Expert (Aust) Pty Ltd. The application was filed on 6 June 2005 and listed for hearing on 23 June, thereby fulfilling the requirements of s34(3) of the Act. 2 At the hearing of the matter, Ms N Kastoun appeared for the applicant Union. The Commission received correspondence from the respondent advising that due to travel considerations they were unable to attend the hearing but consenting to the approval of the enterprise agreement. 3 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. 4 The application is accompanied by the required affidavit, deposed to on 4 November by Mr W Tomlins, Deputy Secretary of the Electrical Trades Union of Australia, New South Wales Branch. 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 48 employees who would be otherwise employed pursuant to the terms of the Electrical Electronic and Communications Contracting Industry (State) Award and this agreement shall apply to the extent of any inconsistency with that Award. The agreement provides for two 3 per cent wage increases during the life of the agreement and I have been advised by the Union that the agreement has been voted upon and supported by the employees to be covered by it. 6 Having heard the submissions of the parties and upon reviewing 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 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 Pursuant to s35 of the Act, I therefore approve an Enterprise Agreement to be known as the Asplundh Tree Expert (Australia) Pty Ltd Enterprise Agreement 2005-2006. In accordance with previous decisions of the Commission, there is no legislative prohibition for enterprise agreements having retrospective application. At the request of the parties, I therefore approve the agreement applying on and from 1 January 2005 and it shall remain in force until 31 December 2006. 9 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.