Industrial Relations Commission of New South Wales CITATION: Serco Australia Pty Limited v. Australian Workers Union [2006] NSWIRComm 1026 APPLICANT Serco Australia Pty Limited PARTIES: RESPONDENT Australian Workers Union INTERVENOR Transport Workers Union of New South Wales FILE NUMBER(S): 6776 of 2005 CORAM: Connor C CATCHWORDS: application for new award - consent of parties and intervenor - award made - original application for an enterprise agreement amended in the proceedings to an application for an award - compliance with the requirements for the making of the award LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Enterprise Agreements Case (1996) 70 IR 437 HEARING DATES: 10/02/2006 DATE OF JUDGMENT: 02/10/2006 EXTEMPORE JUDGMENT DATE : 02/10/2006 APPLICANT Brad Carpenter Dawson Brown and Associates LEGAL REPRESENTATIVES: RESPONDENT Wayne Phillips Australian Workers Union INTERVENOR Greg Selig Transport Workers Union of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 10 February, 2006 Matter No IRC 6776 of 2005 Serco Australia Pty Limited and the Australian Workers Union Application under S.11 of the Industrial Relations Act, 1996 for a new Serco Australia Transport Services Port Kembla Award DECISION [2006] NSWIRComm 1026 1 These proceedings on Friday, 10 February, 2006 (in Sydney) concern an application made by Serco Australia Pty Limited. Initially the application was for approval of an enterprise agreement – the Serco Australia Transport Services Port Kembla Agreement - under S.35 of the 1996 Industrial Relations Act. However, that application was amended in the proceedings on Friday, 10 February, 2006 to be in the form of a new State award - the Serco Australia Transport Service Port Kembla Award - made in terms of S.11. The proceedings on Friday, 10 February, 2006 were originally a mention but they were converted into a hearing at the request of the parties - Mr Carpenter representing Serco and Mr Phillips representing the Australian Workers Union - and with no objection by an intervenor - Mr Selig representing the Transport Workers' Union of New South Wales. 2 As far as enterprise agreements are concerned, in terms of S.35, the Commission's approval is conditional on a number of matters, viz: (i) that that there is compliance with all relevant statutory requirements (including the 1977 Anti-Discrimination Act); (ii) that the proposed enterprise agreement does not, on balance, provide a net detriment to the employees covered by the enterprise agreement when compared with the aggregate package of conditions of employment under relevant State award: in this case the application referred to the Transport Industry - Motor Bus Drivers and Conductors (State) Award; (iii) that the parties understand the effect of the enterprise agreement; and (iv) the parties did not enter the enterprise agreement under duress. Such approval is also governed by the principles laid down by the Full Bench of the Commission (Fisher J - President, Cahill J - Vice President, Bauer and Schmidt JJ and Neal C) in the Enterprise Agreements Case (1996) 70 IR 437, convened in accordance with S.33. 3 Originally the proposed enterprise agreement with the AWU was set down for a mention on Monday, 30 January, 2006 (in the Commission's premises at 90 Crown Street, Wollongong). The TWU intervened in the proceedings at that time. Its interest arose by virtue of its involvement in the State award which was provided as the basis for comparison - the State bus drivers and conductors award. At the request of the parties and the intervenor, I adjourned the proceedings for further mentions on Tuesday, 7 February, 2006 (in Wollongong) and Friday, 10 February, 2006 (in Sydney). At that time Serco amended its application to take the form of a new State award and the matter proceeded into a hearing on that basis. The new State award proceeded with the consent of the parties - Serco and the AWU - and with no objection from the intervenor - the TWU. 4 The proposed new State award covers 14 employees of Serco which operates under contract for transport services at the Port Kembla steelworks. It complies with the requirements for the making of such State awards in that (i) it is intended to have a nominal term expiring in late 2008 - and therefore is in accordance with the requirements of S.16(2) - and (ii) it contains in Part 2.2, Dispute Resolution, the mandatory dispute resolution procedure required by S.14. 5 It may be somewhat unorthodox procedure to convert an application initially made under S.35 for approval of an enterprise agreement into an application under S.11 for a new State award. I am nevertheless mindful that it is an objective for the Commission, complimented by S.163(1)(c), to proceed "...without regard to technicalities or legal forms..." and it is in everybody's interests that I act speedily to bring this matter to conclusion and give the parties the type of regulation for the work in question which has historically been available to them and which they clearly seek - and are entitled to have, notwithstanding the uncertainty which presently exists throughout the industrial community over the role of such regulation in the future. 6 I therefore propose to make the new State award in accordance with the application provided in the proceedings on Friday, 10 February, 2006 effective from the beginning of the first pay period to commence on or after Friday, 10 February, 2006. P J CONNOR 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.