Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Port Stephens Council re Collective Agreement [2008] NSWIRComm 178 APPLICANT Port Stephens Council PARTIES: RESPONDENT New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, Local Government Engineers' Association, Development and Environmental Professionals' Association FILE NUMBER(S): IRC 2189 of 2007 CORAM: Harrison DP CATCHWORDS: Notification of industrial matter - Non-adversarial co-operative approach to agreement making - assistance of Commission to facilitate - construction of comprehensive industrial agreement by inclusive process - diverse organisation - review of salary system - job evaluation and wage increases to market based on specific labour market research - s 146A agreement - industrial agreement for three year period approved. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 14 December 2007; 31 January 2008; 21 February 2008; 13 March 2008; 10 April 2008; 8 May 2008 12 June 2008; 27 June 2008; 17 September 2008; 29 September 2008 DATE OF JUDGMENT: 10 October 2008 APPLICANT Mr R Potter New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Mr G Brock LEGAL REPRESENTATIVES: Local Government Engineers' Association RESPONDENT Ms Michelle Gilliver Smith Port Stephens Shire Council JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 10 October 2008 Matter No IRC 2189 of 2007 Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Port Stephens Council re Collective Agreement DECISION [2008] NSWIRComm 178 1 In December 2007 the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) exercised its rights as a registered industrial organisation to seek the assistance of the Commission in a review of industrial arrangements, rates of pay and employment conditions at Port Stephens Council ("the Council"). 2 In proceedings of 14 December 2007 the USU and Council jointly requested the Commission facilitate a Workplace Agreement Committee (WAC) to assist the parties. 3 The parties advised that they were not in conflict but relied upon the wider definition of "dispute" found in the dictionary to the Industrial Relations Act 1996 ("the Act") which includes inter alia a "question or difficulty about an industrial matter", to access the jurisdiction and assistance of the Commission. 4 The matter proceeded in accordance with the request of the parties, which proved a useful and non-adversarial manner of agreement making. 5 The WAC, made up of representatives of management, the USU, the Local Government Engineers' Association (LGEA), the Development and Environmental Professionals' Association (DEPA), and employees, first met on 31 January 2008 and convened monthly thereafter. 6 The WAC was supported by functional sub-committees from Maintenance and Construction, Holiday Parks, Corporate Clean, Trades, Libraries, Parks, Childcare, Section Managers, Rangers, Community Services and Information Technology. 7 The activities of the WAC took place in an open and transparent manner, involving regular interaction with the sub-committees and broadly based communication via Council's internal electronic system, known as "FunnelWeb". 8 A separate professional unit of Council undertook an in-depth review of the salary administration system within Council with periodic progress reports to the WAC. 9 The WAC considered a vast range of issues, opportunities, and options in a constructive and cooperative manner. Some options were accepted and some discarded in reaching consensus at its meeting of 27 June 2008 on a draft of a new industrial agreement to cover employees of the Council. 10 The centrepiece of the proposed agreement is a revised salary administration system which will better recognise, reward, and encourage skills development to the mutual benefit of Council and its employees. 11 This is supported by a range of flexible working conditions, rights and obligations designed to attract and retain employees and improve efficiency of Council's operations to the benefit of the community at large. 12 The proposed agreement provides for suitable transition arrangements, training and support at all levels of the organisation. 13 The process of establishing an industrial agreement specific to the Council then moved into the approval phase and was first considered on 8 July 2008 by Council, which voted unanimously to endorse the draft agreement as a formal offer to employees and the unions. 14 The agreement was communicated to all stakeholders during the course of the approval process by the unions and Council using the resources of the professional public relations and communications unit established within the Council. 15 The matter was subject to further compulsory conference and report back proceedings on 29 September 2008. Mr R Potter appeared on behalf of the USU and LGEA. Ms M Gilliver Smith appeared on behalf of the Council. 16 Mr Potter tendered a referral agreement (Ex1) pursuant to s 146A of the Act which Port Stephens Council has entered into with the USU, the LGEA, and DEPA. The referral agreement (NREF 48 of 2008), filed with the Industrial Registrar, commits the parties to the provisions of the Act and the powers of the Commission conferred thereby. 17 Mr Potter further tendered an Application for Approval of an Enterprise Agreement (Ex 2) made between the Council, USU, LGEA and DEPA, supported by the necessary Statement of Particulars. 18 Ms Gilliver Smith described the communication process set in place to disseminate details of the proposed Enterprise Agreement to Council's employees and allow feedback and comment from employees. 19 Ms Gilliver Smith submitted that a secret ballot of employees was conducted by the Australian Electoral Commission on 18 August 2008, the results of which are contained in a Declaration of Result (Ex 7), which records acceptance by a majority vote of 91.5 per cent. Ms Gilliver Smith submitted that separate votes of union members overwhelmingly accepted the proposed Enterprise Agreement. 20 In support of the application Ms Gilliver Smith, in her capacity as Human Resources Manager for the Council, tendered an affidavit deposed by her (Ex 6). Ms Gilliver Smith describes in detail in her affidavit the communication undertaken. Ms Gilliver Smith, who has been the Council's principle representative during the review process, has further provided substantive and critical support to the WAC process. 21 Ms Gilliver Smith submitted that the proposed Enterprise Agreement complies with the relevant legislation and the principles for approval of an enterprise agreement established by the Commission pursuant to s 33 of the Act (2000) 94 IR 98; is not entered into under duress, and provides no net detriment to Council's employees. 22 Mr Potter supported the submissions of Ms Gilliver Smith and commended the proposed Enterprise Agreement. Mr Potter tendered undertakings given by Port Stephens Council to the USU in the form of correspondence dated 2 September 2008 (Ex 8) which records an undertaking in relation to the treatment of higher duties pay; and correspondence dated 5 August 2008 (Ex 9) which records an undertaking in respect of implementation of the salary system and accompanying pay scales. 23 An affidavit, deposed by Mr G Brock, Senior Industrial Officer, on behalf of the LGEA (Ex 3), provides support for the proposed Enterprise Agreement and concurs with the submissions of the Council. 24 An affidavit deposed by Mr Potter, Organiser, on behalf of the USU (Ex 4) attests that the agreement complies with the relevant statutory requirements; satisfies the no net detriment test; was not entered into under duress; and complies with the principles for approval determined by the Commission. 25 A further affidavit deposed by Mr I Robertson, Secretary, on behalf of DEPA (Ex 5), provides the support of that organisation and also concurs with Council's submissions. 26 The Enterprise Agreement is a well balanced, mutually beneficial arrangement, consistent with industry and community standards. It has been constructed as an indivisible package, having regard to affordability by Council, security of employment, and earnings and career opportunities for employees. 27 I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary tests. 28 The Port Stephens Council Enterprise Agreement 2008 is approved in the terms of the application (Ex 2), with effect from 1 September 2008 for a period of three years therefrom. 29 I note that the WAC will continue to meet during the first 12 months of the term of the Agreement to assist with implementation. The parties have sought the continuing assistance of the Commission to facilitate meetings of the WAC, which will occur in appropriate proceedings. 30 Matter No IRC 2189 of 2007 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.