Industrial Relations Commission of New South Wales CITATION: Department of Environment and Conservation NSW Flight Officers [2007] NSWIRComm 1006 PARTIES: Director General of the Department of Environment and Conservation NSW and the Director of Public Employment FILE NUMBER(S): 22 of 2007 CORAM: Macdonald C CATCHWORDS: Application for approval of Enterprise Agreement - application granted LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 24/01/07 DATE OF JUDGMENT: 24 January 2007 APPLICANT Director General of the Department of Environment and Conservation NSW and the Director of Public Employment LEGAL REPRESENTATIVES: RESPONDENT George Mortimer Foster et al DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 24 January 2007 Matter No IRC 22 of 2007 Department of Environment and Conservation NSW Flight Officers Enterprise Agreement 2006 Application by Department of Environment and Conservation NSW and the Director of Public Employment for approval of an enterprise agreement DECISION [2007] NSWIRComm 1006 1 This decision is issued further to the extempore approval granted for the Department of Environment and Conservation NSW Flight Officers Enterprise Agreement 2006 ("the Agreement") which was filed on 8 January 2007. 2 On 8 January 2007, Department of Environment and Conservation NSW ("the Applicant"), made application for approval of an enterprise agreement, pursuant to the Industrial Relations Act 1996 ("the Act"). The application named the other party to the Agreement as George Mortimer Foster et al ("the Employees"). 3 The matter was set down for Consent Hearing on 19 January 2007, but did not proceed by way of consent on that day. This was due to the intervention of the Public Service Association and Professional Officers Association NSW ("the Union"). That Union was represented by Mr S Little, who sought leave to intervene in the proceedings. He advised that his Union was unaware of this enterprise agreement application. (The enterprise agreement had been negotiated between the Applicant and the Employees.) Mr Little advised that the work of the Employees in question was work covered by the constitution of his Union. Further, he had not yet been provided with a copy of the enterprise agreement application. Mr Little sought an adjournment in order for the Union to assess the enterprise agreement application. 4 The Applicant was represented by Ms E Butcher, with Mr Davidson. Mr Foster, representing the Employees was in attendance. 5 Ms Butcher advised of her surprise to be contacted by the Union - given that it was a non-union enterprise agreement. Ms Butcher provided submission in support of the enterprise agreement application. Thus, this application was the fourth such application: There had already been three prior enterprise agreements approved by this Commission. The application provided for a 16% salary increase over a four year period. The application contained clauses providing for dispute resolution and anti-discrimination. The application satisfied the no nett detriment test. 6 The Commission was also provided with other documentation in support of the application. One such document is the Comparison of Conditions, which named the comparator award as the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2006 ("the Award"). This Award is one to which Mr Little's Union is a respondent. 7 The Commission took a short adjournment and on reconvening provided to Ms Butcher and Mr Little a decision of the former Industrial Commission in Court Session (Fisher P., Watson J and Mills CC): Appeal by FCU (NSW Branch) re agreement of Detroit Engine and Turbine Pty Ltd (1990) AILR # 47) - ("the Appeal Decision"). The Appeal Decision considered the right of a union to intervene in proceedings in which an enterprise agreement had been negotiated between a company and its employees - without union involvement - and which enterprise agreement was sought to be ratified by an industrial tribunal. As to intervention rights by a union, the Appeal Decision said that the union in question was entitled to have been treated as a respondent to the application and given the rights of a party: "(A) union would have a further direct interest in seeking to ensure that agreements were entered into under the principle (restructuring and efficiency principle) which did not create what it might regard as inappropriate precedents for other employees in the same industry. " 8 The Appeal Decision related to an enterprise agreement made under the restructuring and efficiency principle, but the reasoning of the Appeal Decision applies, equally, to the current wage fixing principles. 9 The proceedings were adjourned in order for the Union to be provided with copies of all relevant documentation in order that the Union could give consideration to the application and advise the Applicant of any concerns that the Union may have with the application. The matter was set down for another day, 24 January 2007, for possible consent proceedings. 10 On 24 January 2007, the matter proceeded by way of consent following the Union's advice that it did not oppose the application. 11 An Amended application was handed up to the Commission on the day. Clause 2 - Parties to Agreement was amended: not as to making the Union a party to the application but clearly identifying which employees were a party to the application. 12 The Commission issued an Ex Tempore decision approving of the application. 13 Having considered all of the material, the Commission is satisfied that the Agreement complies with the various legislative requirements and the Principles for Approval of Enterprise Agreements as adopted by this Commission. 14 The Commission hereby approves the Amended application: Department of Environment and Conservation NSW Flight Officers' Enterprise Agreement 2006. The enterprise agreement will operate from 1 July 2004 and remains in force until the nominal expiry of 30 June 2008, or until varied or rescinded. A Macdonald 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.