Industrial Relations Commission of New South Wales CITATION: 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 Electrical Trades Union of Australia, New South Wales Branch PARTIES: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Association of Professional Engineers, Scientists and Managers Australia Country Energy FILE NUMBER(S): IRC 1952 of 2009 CORAM: Harrison DP CATCHWORDS: Industrial agreement negotiations consistent with NSW Government Wages Policy - operation of section 146A - intersection with Fair Work Act and Fair Work Transitional Provisions and Consequential Amendments Act. Agreement approved - Country Energy Enterprise Agreement 2009 - Preserved State Agreement to become Fair Work agreement-based transitional instrument. Industrial Relations Act 1996 Industrial Relations (Commonwealth Powers) Act 2009 LEGISLATION CITED: (Cwth) Workplace Relations Act (Cwth) Fair Work Act (Cwth) Fair Work Transitional Provisions and Consequential Amendments Act HEARING DATES: 15 December 2009 DATE OF JUDGMENT: 17 December 2009 EXTEMPORE JUDGMENT DATE: 15 December 2009 Ms R Mifsud Electrical Trades Union of Australia, NSW Branch Ms N Falvey LEGAL REPRESENTATIVES: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Association of Professional Engineers, Scientists and Managers Australia Mr P Smith Country Energy JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 17 December 2009 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 DECISION [2009] NSWIRComm 218 1 The Country Energy Enterprise Award 2007 ("the 2007 Award") 363 IG 1367 was made by the Commission as presently constituted in Matter No IRC 1068 of 2007 [2007] NSWIRComm 171. 2 Clause 47 of the 2007 Award provides for application from the first pay period to commence on or after 1 July 2007 until expiry on 30 June 2009. 3 Clause 4 of the 2007 Award provides: "at least 3 months before the nominal expiry of this award the parties shall commence negotiation for a replacement enterprise award" 4 The 2007 Award was made pursuant to the (NSW) Industrial Relations Act 1996 ("the Act") in accordance with jurisdiction and powers conferred by way of section 146A of the Act. Section 146A states: 146A Commission may exercise certain functions conferred on it by agreement (1) This section applies to any of the following kinds of dispute if the parties to the dispute have agreed in writing (the referral agreement ) that the dispute (or disputes of a class to which the dispute belongs) be resolved by the Commission: (a) a dispute about any conditions of employment or industrial matter between an industrial organisation of employees and one or more employers (or industrial organisations of employers), (b) a dispute of the kind referred to in section 332 (2) or (3) or a dispute about a claim for compensation of the kind referred to in section 346 between: (i) an industrial organisation of employees and one or more employers (or industrial organisations of employers), or (ii) an association of contract carriers and one or more principal contractors (or associations of employing contractors), or (iii) an association of contract drivers and one or more bailors (or associations of employing contractors). (2) A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement. (3) On any such application, the Commission has and may exercise such functions with respect to the resolution of the dispute as may be specified in the referral agreement. (4) Without limiting subsections (2) and (3), the functions of the Commission with respect to the resolution of a dispute to which this section applies that may be specified in a referral agreement include the following: (a) the conciliation of the dispute, (b) the arbitration of the dispute, (c) the granting of a remedy or other relief of the kind provided by Part 6, 7 or 9 of Chapter 2, (d) the granting of a remedy or other relief of the kind provided by Part 7 of Chapter 6, (e) the determination of any other issue or question arising in the dispute. (5) The regulations may make provision for or with respect to the application of the provisions of this Act (with such modifications, if any, as may be prescribed by the regulations) to the exercise of functions conferred on the Commission by referral agreements. (6) Subject to any regulations made for the purposes of subsection (5), the Commission is to be constituted by: (a) except as provided by paragraph (b)—a single member of the Commission, or (b) if the function to be exercised is a function of the kind referred to in section 153 (1)—the Commission in Court Session. (7) Subject to this Act and any regulations made for the purposes of subsection (5) (and without limiting the generality of section 185), rules of the Commission may be made for or with respect to the practice and procedure of the Commission in the exercise of functions conferred on it by referral agreements. (8) Nothing in this section makes any order, determination or other decision of the Commission in respect of a dispute binding on the parties to the dispute unless the referral agreement operates (apart from this section) to make any such order, determination or decision binding on the parties. (9) Despite the provisions of Part 7 (Appeals and references to Commission) of Chapter 4, a party to a dispute in respect of which the Commission has made a decision in exercise of a function conferred by a referral agreement may not appeal against the decision under that Part unless the agreement provides that the party may appeal such a decision. (10) The functions conferred on the Commission by or under this section are in addition to, and do not derogate from, any other function of the Commission. (11) In this section: association of contract carriers , association of contract drivers , association of employing contractors , bailor and principal contractor have the same meanings as they have for the purposes of Chapter 6. modification includes addition, exception, omission or substitution. 5 The effect of the (Cwth) Workplace Relations Act was to convert the 2007 Award to a Preserved State Agreement (PSA) for the purposes of the relevant Commonwealth industrial legislation. 6 The passage of the Fair Work Act and the Fair Work Transitional Provisions and Consequential Amendments Act ("the Transitional Act") is that by the operation of Schedule 3 of the Transitional Act, Continued Existence of Awards, Workplace Agreements and certain other WR Act Instruments, the 2007 Award becomes an agreement-based Fair Work Transitional Instrument. 7 It is useful to note that S 2(2) of Schedule 3 of the Transitional Act states: "Each of the following instruments is a WR Act Instrument: (a) an award; (aa) a State reference transitional award or common rule; (b) a notional agreement preserving State awards; (c) a workplace agreement; (d) a workplace determination; (e) a preserved State agreement; (f) an AWA; (g) a pre-reform certified agreement; (h) a pre-reform AWA; (i) an old IR agreement; (j) a section 170MX award. 8 Consistent with cl 4 of the 2007 Award, the parties commenced negotiation of a replacement award in early 2009. The parameters for those negotiations as a State Owned Corporation were that the outcome had to comply with the NSW Government Wages Policy. 9 Negotiations were long, difficult and at times intense as the parties grappled with the substantive issues. 10 This matter arose by notification by the Electrical Trades Union of Australia, NSW Branch (ETU) which sought assistance of the Commission to conclude that process. 11 In proceedings of 15 December 2009 Ms Mifsud appeared for the ETU. Ms Falvey appeared for New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) and the Association of Professional Engineers, Scientists and Managers Australia. Mr Smith appeared for Country Energy with Mr Morassutti and Ms Palmer. 12 The parties jointly sought the Commission to exercise jurisdiction pursuant to s 146A to approve an enterprise agreement (Ex 1) to replace the 2007 Award. 13 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 uncertainty. 14 Ms Mifsud tendered correspondence from the (NSW) Department of Industrial Relations (Ex 2) which states inter alia: "As you will be aware, section 146A was inserted into the Industrial Relations Act 1996 in 2006 to provide a mechanism whereby the Commission could exercise powers in relation to parties who were otherwise covered by the Commonwealth industrial relations system, where those parties entered into an agreement to permit the Commission to exercise those powers. In many cases, the employer party to such an agreement is a constitutional corporation and therefore is subject to the Commonwealth law, but was exercising a choice to make an agreement with the relevant union to have industrial matters arising in its workplace to be dealt with in the NSW Commission. As part of the NSW Government's decision to participate in the national industrial relations system established under the Fair Work Act 2009, the Government has agreed that section 146A should be repealed. The NSW Government is satisfied that the Fair Work system provides the necessary benefits and protections to both employers and employees, and therefore it is no longer necessary or appropriate to provide for alternatives. The repeal is provided for in the Industrial Relations (Commonwealth Powers) Act 2009 that passed through NSW Parliament on 1 December 2009 and is due to commence on 1 January 2010. … … Being constitutional corporations, State-owned corporations have indeed been covered by the Commonwealth law since 2006. However, as I have clarified above, section 146A provided corporations with an option to continue to effectively operate within the State system . Section 146A is not repealed until 1 January 2010. It remains in force. Accordingly, the process created by section 146A of the NSW Act remains open to be used by the Commission when dealing with an agreement brought under those terms. If the Government had wished to abolish the mechanism of section 146A earlier than the date of entry into the national industrial relations system, this would have been provided for in the Industrial Relations (Commonwealth Powers) Act 2009 . [emphasis added] 15 Ms Mifsud, supported by Ms Falvey and Mr Smith, submitted that, whle the available window for use of s 146A was closing, the Commission retained referred jurisdiction to approve the Country Energy Enterprise Agreement 2009 in settlement of the instant dispute. 16 I agree with that submission. 17 The substance of the Agreement (Ex 1) is comprehensive; it covers the same parties as the 2007 Award; is to apply from the first pay period commencing on or after 1 July 2009; and shall remain in force until 30 June 2011. 18 The Agreement provides wage increases supported by productivity and cost saving initiatives necessary to comply with (NSW) Government Wages Policy. 19 The Agreement satisfies all of the principles for approval of an agreement, and is accordingly approved. 20 Exhibit 2 further states: "Once the national industrial relations system is in place, it will be appropriate for employers and unions who have achieved award- or agreement-like outcomes from section 146A proceedings to seek to have the terms of those instruments reflected in federal enterprise agreements, so as to ensure that they are both certain and enforceable." 21 The Country Energy Enterprise Agreement 2009, thus approved in the transitional period pursuant to powers referred in accordance with s 146A of the Act, becomes, for the purposes of Commonwealth industrial legislation, a Preserved State Agreement which, in accordance with Schedule 3 of the Transitional Act, is from 1 January 2010 a Fair Work Agreement based transitional instrument which may be varied or terminated only in limited circumstances as set out in Part 3 of Schedule 3 of the Transitional Act. 22 Matter No IRC 1952 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. 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