Industrial Relations Commission of New South Wales CITATION : Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and National Roads and Motorists Association Ltd t/as NRMA Ltd [2004] NSWIRComm 190 APPLICANT: PARTIES : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch RESPONDENT: National Roads and Motorists Association Ltd t/as NRMA Ltd FILE NUMBER: 637, 1952, 2782, 2802 of 2004 CORAM: Sams DP Industrial disputes - roadside service patrol officers - various proceedings in other courts and tribunals - conditions of employment - new industrial instrument - interim award application - agreed programming of applications - agreement of the parties - application for enterprise agreement - documents filed in court - wage increases - three year agreement. CATCHWORDS : Held, application for approval of enterprise agreement granted - registration of agreement effective on day of hearing - consequential orders - disputes resolved and concluded - outstanding matter referred for conciliation. LEGISLATION CITED : Industrial Relations Act 1996 Anti Discrimination Act 1977 CASES CITED : State Wage Case 2004 [2004] NSWIRComm 148 Review of the Principles for Approval of Enterprise Agreements (2000), 101 IR 332 HEARING DATES: 06/01/2004; 06/28/2004 DATE OF JUDGMENT: 07/05/2004 NOTIFIER/APPLICANT (1/6/04) Mr S Crawshaw, SC UNION Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch LEGAL REPRESENTATIVES: (28/6/04) Mr A Neilson, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch RESPONDENT (1/6/04) Mr G Watson, Solicitor, Freehills (28/6/04) Mr A Longland, Solicitor, Freehills JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : SAMS, DP 5 July, 2004 Matter IRC04/637 Notification under s130 by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, of a dispute with NRMA re stand down of Mr Mifsud Matter IRC04/1952 Notification under s130 by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, of a dispute with National Roads and Motorists Association Ltd t/as NRMA re refusal of the NRMA to allow patrol representatives to convene, discuss and prepare correspondence IRC04/2782 Notification under s130 by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, of a dispute with NRMA re failure to allow split mass meetings to discuss the EBA IRC04/2802 NRMA PATROL OFFICERS INTERIM AWARD 2004 Application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, for a new award DECISION [2004] NSWIRComm 190 1 This decision follows upon my ex tempore decision of 28 June 2004 in which I approved for registration the NRMA Limited Patrol Officers Enterprise Agreement 2004 and made other orders consequent upon such approval. 2 It would be no exaggeration to observe that this dispute has had a protracted and unique history involving industrial action and proceedings in various courts and tribunals. The instant matters before me have been before O'Neill C of this Commission on a number of occasions. There have been other proceedings before Munro J of the Australian Industrial Relations Commission and related matters before the Supreme Court of New South Wales and the Court of Appeal. 3 It is unnecessary for me to detail this long and involved history. It is sufficient to note that the gravamen of the dispute between the National Roads and Motorists Association Limited ('the NRMA') and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ('the Union') concerns the terms and conditions of a new industrial instrument to cover some 400 roadside patrol officers. 4 These four matters were allocated to me by his Honour the President on 26 May 2004 and listed for conciliation on 1 June 2004. However, at that time, Mr S Crawshaw of senior counsel for the Union made an urgent application for an interim award. The intention of the interim award was to preserve all the existing conditions and arrangements under the then existing enterprise agreement which was due to expire on 10 June 2004. 5 Mr G Watson, solicitor for the NRMA, submitted that the matters should be programmed for arbitration in the usual way, given the long and exhaustive history of the dispute. In addition, Mr Watson gave an assurance, on behalf of the NRMA, that the provisions of the existing 2001 Agreement would continue to apply pending the determination by arbitration of the outstanding issues. He said the Commission should issue a certificate of attempted conciliation, pursuant to s135 of the Act, and program the Union's award application and a cross award application to be filed by the NRMA, for arbitration. Both parties properly conceded that the proposed cross award applications would likely attract Special Case considerations in accordance with principle 10 contained within the State Wage Case 2004 [2004] NSWIRComm 148. 6 During the proceedings an agreement was reached between the parties in the following terms: 1. Both parties to file new Award applications within 10 days in order to facilitate an expeditious arbitration. 2. The NRMA to extend the terms and conditions of the 2001 agreement (due to expire on 10 June) until such time as the Commission determines the cross award applications by arbitration. 3. The NRMA to formally withdraw its federal bargaining period notice tomorrow. 4. The Union would not press its interim award application (matter 2802 of 2004) (liberty to apply however was granted). 5. In respect to the arbitration, both parties hoped for an expedited hearing based on the following timetable: i) Award applications filed within 10 days. ii) NRMA to file evidence and outline of submissions 21 days later. iii) Union to file evidence and outline of submissions 14 days thereafter. iv) NRMA to file reply 14 days thereafter. 6. It was likely that special case considerations would arise in both award applications (to be considered when the award applications are filed). 7 Cross award applications were duly filed on 11 June 2004 and listed for further directions on 28 June 2004. In the meantime, I consulted with the President on the Special Case aspects of the applications. 8 On 28 June 2004, Mr A Neilson appeared for the Union and Mr A Longland, solicitor, appeared for the NRMA. In what was a surprising and most welcome development, the parties filed an application for approval of an enterprise agreement (Ex 1) and an affidavit of Mr John Parkin was filed by Mr Neilson in respect to the application for registration of the enterprise agreement (Ex 2). 9 Both parties sought to have the enterprise agreement approved effective from that day. In view of these unusual developments, the Commission, pursuant to r 88, waived all the procedural requirements (to the extent it was necessary) for the filing of the relevant documents and accepted such filing in court. The Commission then proceeded to hearing the application for approval of the enterprise agreement. 10 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. 11 The Agreement provides for a number of conditions of employment in excess of those prescribed in the relevant award - the Metal, Engineering and Associated Industries (State) Award, and wage increases of 13 per cent in three instalments of 5 per cent on registration of the Agreement and two 4 per cent increases at 12 monthly intervals thereafter. 12 Having heard the submissions of the parties and having an opportunity to question both 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. 13 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. 14 Pursuant to s35 of the Act, I therefore approve an Enterprise Agreement to be known as the NRMA Limited Patrol Officers Enterprise Agreement 2004 to take effect on and from 28 June 2004 and to remain in force for a period of three years thereafter. 15 As a consequence of the registration of the Agreement, I further order as follows: 1. Dispute notification 637/04 is listed for further conciliation at 4.00pm on 21 July 2004. 2. Dispute notification 1952/04 is resolved and concluded. 3. Dispute notification 2782/04 is resolved and concluded. 4. Leave is granted to discontinue application 2802/04 by consent. 5. Leave is granted to discontinue the two cross award applications filed in the above proceedings by consent. 6. The Commission's directions issued on 1 June 2004 are set aside. 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.