Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by Unions NSW of a dispute with Macquarie Generation and others re enterprise award negotiations [2009] NSWIRComm 222 PARTIES: Unions NSW and affiliated unions Macquarie Generation FILE NUMBER(S): IRC 911 of 2009 CORAM: Harrison DP CATCHWORDS: Notification of industrial dispute - enterprise agreement negotiations - principles and substance agreed - jurisdiction in accord with determination in [2009] NSWIRComm 218 - Agreement approved. LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations (Commonwealth Powers) Act 2009 HEARING DATES: 26 June 2009, 27 August 2009, 12 October 2009, 15 October 2009, 28 October 2009, 16 December 2009, 17 December 2009, 18 December 2009 DATE OF JUDGMENT: 21 December 2009 EXTEMPORE JUDGMENT DATE: 18 December 2009 Mr P McPherson Unions NSW LEGAL REPRESENTATIVES: Ms E Morson AiG JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 21 December 2009 Matter No IRC 911 of 2009 Notification under section 130 by Unions NSW of a dispute with Macquarie Generation and others re enterprise award negotiations DECISION [2009] NSWIRComm 222 1 The Macquarie Generation Enterprise Agreement 2008 ("the 2008 Agreement") EA08/17 was made by Stanton C in Matter No IRC 928 of 2008 [2008] NSWIRComm 1059 with application from 1 July 2008 to 30 June 2009. 2 These proceedings arose by notification of a dispute by Unions NSW on 24 June 2009 seeking the assistance of the Commission in enterprise award negotiations. 3 The matter was first subject to compulsory conference on 26 June 2009 and subsequently on a number of occasions throughout the second half of 2009. 4 In proceedings of 18 December 2009 Ms Morson of Australian Industry Group (AiG) appeared on behalf of Macquarie Generation with Ms T Frazer, Mr K Petersen, Mr J Neely and Mr P Sewell. Mr P McPherson appeared on behalf of Unions NSW, the Association of Professional Engineers, Scientists and Managers Australia (APESMA), Australian Institute of Marine and Power Engineers, NSW District (AIMPE), Australian Workers' Union, New South Wales (AWU) and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) with Mr G Spinks, Mr W Smith and Mr L Gleeson. Mr A Drew appeared on behalf of Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU). Mr R Wilson appeared on behalf of the Electrical Trades Union of Australia, NSW Branch (ETU). Ms T Brown appeared for New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU). 5 The parties jointly sought the Commission to exercise jurisdiction pursuant to a section 146A referral agreement (NREF44/07), exhibit 4 in this matter, to approve an enterprise agreement to replace the 2008 Agreement. 6 The substance of the Macquarie Generation Enterprise Agreement 2009 ("the 2009 Agreement) (Ex 5) is comprehensive. It covers the same parties as the 2008 Agreement; is to apply from the first pay period commencing on or after 1 July 2009; and shall remain in force until 30 June 2012. 7 The 2009 Agreement provides wage increases supported by productivity and cost saving initiatives in accordance with (NSW) Government Wages Policy. 8 The passage of the (NSW) Industrial Relations (Commonwealth Powers) Act 2009, which repeals s 146A from the date of proclamation of that Act, created some jurisdictional uncertainty. 9 This was resolved in Matter No IRC 1952 of 2009, Notification under section 146A by The Electrical Trades Union of Australia, NSW Branch and others to refer a dispute with Country Energy re 2009 award negotiations [2009] NSWIRComm 218 of 17 December 2009 ("the Country Energy matter"). 10 The parties referred to the Country Energy matter and jointly relied upon the principles determined in that matter for the transition of the 2009 Agreement, once made, to become a Fair Work Agreement Based Industrial Instrument. 11 Approval by the NSW Treasury became an essential aspect in the capacity of Macquarie Generation to reach agreement. 12 The 2009 Agreement is predicated upon a Terms of Settlement document tendered by Mr McPherson (Ex 1) which sets out the Heads Of Agreement endorsed by a mass meeting of employees on 10 November 2009. 13 In enunciating the agreement by Macquarie Generation Ms Morson tendered a detailed extract from exhibit 1 which she put contained elements essential to approval by Treasury (Ex 6). 14 Exhibits 1 and 6 become appendices to the 2009 Agreement as they record the intent and principles which bind the parties. 15 There was no issue that exhibit 6 is a subset of exhibit 1 and that all of the aspects of the Heads of Agreement found in exhibit 1 are expressed in the 2009 Agreement (Ex 5). 16 All parties were concerned to ensure that ongoing work practice change, in particular the introduction of the Production Technician classification in accordance with the determination made by a Full Bench of this Commission on 30 September 2009 [2009] NSWIRComm 160, continues undisturbed by the making of the 2009 agreement and its transition to a Fair Work Agreement Based Industrial Instrument. 17 The parties are committed to this process, and all other aspects of their agreement, broadly stated in exhibits 1 and 6 and detailed in exhibit 5. In my view they are assisted in this by the terms of the disputes resolution procedure at cl 23 of the 2009 Agreement which ensures certainty. 18 Pursuant to the power referred, the Macquarie Generation Enterprise Agreement 2009, having satisfied all of the principles for approval of an agreement, is accordingly approved in the terms of exhibit 5. 19 In accordance with the principles detailed in the Country Energy matter it becomes a Preserved State Agreement and on 1 January 2010 will become a Fair Work Agreement Based Industrial Instrument. 20 Matter No IRC 911 of 2009 is so concluded. ________ 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.