Industrial Relations Commission of New South Wales CITATION : Cleanaway (Northern NSW - Coffs Habour Depot) Certified Agreement 2004 [2004] NSWIRComm 281 APPLICANT: PARTIES : Brambles Australia Ltd t/as Cleanaway RESPONDENT: Transport Workers' Union, New South Wales Branch FILE NUMBER: 5277 of 2004 CORAM: Sams DP CATCHWORDS : Application for approval of enterprise agreement - transport industry - wage increases - employees represented in the negotiations by Union - retrospective application - agreement approved for registration. LEGISLATION CITED : Industrial Relations Act 1996 Anti Discrimination Act 1977 HEARING DATES: 09/21/2004 EXTEMPORE JUDGMENT DATE : 09/21/2004 APPLICANT: Ms P Eggins LEGAL REPRESENTATIVES: RESPONDENT: Mr M Kaine, Transport Workers Union, New South Wales Branch JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 21 September 2004 Matter No. IRC04/5277 CLEANAWAY (NORTHERN NSW - COFFS HARBOUR DEPOT) ENTERPRISE AGREEMENT 2004 Application by Brambles Australia Limited for approval of Enterprise Agreement EX TEMPORE DECISION [2004] NSWIRComm 281 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 Brambles Australia Limited ('the applicant') and the Transport Workers' Union, New South Wales Branch ('the Union'). The application was filed on 1 September 2004 and listed for hearing on 21 September, thereby fulfilling the requirements of s34(3) of the Act. 2 At the hearing of the matter, Ms P Eggins appeared for the applicant and Mr M Kaine appeared for the Union, representing the employees to be covered by the 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 statement of particulars and an affidavit sworn on 1 September by Ms Bonnie Kestel, Human Relations Manager for Brambles Industries Limited. The affidavit sets out that 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 all employees engaged at its Depot at Lot 2 England's Road, Coffs Harbour. The Agreement provides for an initial 3 per cent wage increase from 11 February 2004 and a further 3 per cent increase from the first pay period after 11 February 2005. The first increase has already taken effect. The Agreement provides for the mandatory disputes settlement procedure at cl 10. The Agreement replaces a former enterprise agreement, EA IRC01/5284 which expired on 11 February 2004. The agreement is to be read in conjunction with the provisions of the Transport Industry - Waste Collection and Recycling (State) Award 342 IG 447. 6 During the proceedings, the Commission raised with the parties the title of the agreement referring to it as a "certified" Agreement. By consent I propose to amend the title, wherever it appears in the Agreement, so as to delete the word "certified" and replace it with "enterprise." 7 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. 8 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 11 February 2004. 9 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. 10 Pursuant to s35 of the Act, I therefore approve an Enterprise Agreement to be known as the Cleanaway (Northern Nsw - Coffs Harbour Depot) Enterprise Agreement 2004 to take effect from 11 February 2004 and remain in force until 12 February 2006. 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.