Industrial Relations Commission of New South Wales CITATION: Port Waratah Coal Services Enterprise Agreement 2007 [2007] NSWIRComm 1093 APPLICANT Port Waratah Coal Services Limited RESPONDENTS Seaman's Union of Australia, New South Wales Branch PARTIES: Transport Workers' Union of Australia, New South Wales Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union Australia Workers' Union, Greater New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch Construction, Forestry, Mining and Energy Union, New South Wales Branch FILE NUMBER(S): 2077 of 2007 CORAM: Stanton C CATCHWORDS: Application for approval of enterprise agreement - s 146A Referral Agreement - Industrial Relations Commission of New South Wales empowered to resolve disputes under enterprise agreement and proposed federal collective agreement - agreement approved. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 21 November 2007 DATE OF JUDGMENT: 21 November 2007 APPLICANT: MR B WILLIAMSON, Solicitor with Messrs M Golding, W Carman and Miss K Jackson RESPONDENTS: MR J BOYLE LEGAL REPRESENTATIVES: for Seaman's Union of Australia, New South Wales Branch; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch; Construction, Forestry, Mining and Energy Union, New South Wales Branch; Electrical Trades Union of Australia, New South Wales Branch. MR G RODGER for Transport Workers' Union of Australia, New South Wales Branch. MR N MARTIN for New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union DECISION: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Industrial Relations Act 1996 CORAM : Stanton C 21 November 2007 Matter No. IRC07/2077 PORT WARATAH COAL SERVICES ENTERPRISE AGREEMENT 2007 Application by Port Waratah Coal Services Limited for approval of the Port Waratah Coal Services Enterprise Agreement 2007 DECISION 1 This is an application filed by Port Waratah Coal Services Limited (the Company) seeking approval of an enterprise agreement between the Company and the Seaman's Union of Australia, New South Wales Branch; Transport Workers' Union of Australia, New South Wales Branch; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch; New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union; The Australian Workers Union, Greater New South Wales Branch; Electrical Trades Union of Australia, New South Wales Branch and the Construction, Forestry, Mining and Energy Union, New South Wales Branch. 2 The application was subject to hearing on 21 November 2007. Mr B Williamson, solicitor, appeared for the Company with Messrs M Golding, W Carman and Miss K Jackson. Mr J Boyle appeared for the Seaman's Union of Australia, New South Wales Branch; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch; the Construction, Forestry, Mining and Energy Union, New South Wales Branch and Electrical Trades Union of Australia, New South Wales Branch. Mr G Rodger appeared for the Transport Workers' Union of Australia, New South Wales Branch and Mr N Martin appeared for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union. 3 At the outset, Mr Williamson acknowledged the assistance provided to the parties by his Honour, Deputy President Harrison in matter number 1913 of 2007 towards resolution of the industrial issues now subject to this application. 4 During the course of proceedings, Mr Williamson tendered a Referral Agreement executed by the parties to the proposed enterprise agreement pursuant to s 146A of the Industrial Relations Act 1996. That Agreement was marked MFI 1 for the purposes of these proceedings. Mr Williamson also submitted that a collective agreement had also been lodged under federal law. 5 The Referral Agreement commenced operation on 22 August 2007 and will remain in force until 21 August 2009. The Referral Agreement empowers the Industrial Relations Commission of New South Wales to resolve disputes concerning the interpretation and/or implementation and/or enforcement of the proposed federal collective agreement and the enterprise agreement subject to this application. 6 The Commission may conciliate to assist in the resolution of a dispute and where necessary, the parties grant to the Commission "the full powers" contained in the Act to arbitrate. Full Bench powers on appeal as contained in s 192 of the Act also apply under the Referral Agreement. 7 The application is supported by the necessary Statement of Particulars and an affidavit signed by Miss Jackson, Specialist Advisor People Resources, attesting that the agreement complies with the relevant statutory requirements and satisfies the no net detriment test. 8 Mr Williamson endorsed the application and supporting Statement of Particulars and sought approval of the agreement with effect from 21 November 2007 to remain in force until 21 August 2009. Mr Boyle, Mr Rodger and Mr Martin enunciated the consent of their respective organisations for approval of the application. Specifically, Mr Boyle submitted: Commissioner, as far as the application goes we can say that the employees have been consulted on this enterprise agreement, they have agreed to it and importantly, they understand very clearly the importance and the relevance of the Referral Agreement and the role that the State Commission will play in the future for any problems that we might face with it. 9 In support of the application, Mr Boyle also sought to acknowledge the role played by the single bargaining unit in the negotiations: ... in supporting the submission of the Company, Commissioner, we'd like to acknowledge the hard work that was done by management; we got stuck into it pretty heavily but, more importantly, I think we'd like to – particularly the Unions would like to recognise the role played in these negotiations by the delegates of the single bargaining unit. They played a terrific role and guaranteed a successful outcome for all parties and they certainly need to be congratulated. 10 Mr Williamson submitted the enterprise agreement had been negotiated within a cooperative industrial environment: I think there's been quite a remarkable change in the unions' attitudes towards the Company and the relationship between the Company and the Unions as well and I think that that augers well for a stable industrial future. 11 I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary legislative tests, was not entered into under duress and complies with the principles for approval determined by the Commission. 12 The Port Waratah Coal Services Limited Enterprise Agreement 2007 is approved with effect from 21 November 2007 and shall remain in force until 21 August 2009. 8 This Agreement replaces and rescinds the following industrial instruments: Port Waratah Coal Services Limited Enterprise Agreement 2005 approved in matter number 1102 of 2005; Port Waratah Coal Services Consent Enterprise (State) Award 1995 confirmed by the parties in matter number 680 of 2007; and Port Waratah Coal Services Limited (Traineeship) (State) Award confirmed by the parties in matter number 1711 of 2007. 13 These proceedings are thereby concluded. J D Stanton Commissioner 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.