Industrial Relations Commission of New South Wales CITATION: Labour Co-Operative Limited and United Services Union Local Council Services Casual Employees Enterprise Agreement 2009-2012 [2009] NSWIRComm 32 APPLICANT Labour Co-operative Limited PARTIES: RESPONDENT United Services Union FILE NUMBER(S): IRC 2151 of 2008 CORAM: Harrison DP CATCHWORDS: Request for assistance of the Commission pursuant to s 146A - Referral agreement filed - dispute resolution process invoked - Enterprise Agreement applying to work in NSW Local Government Sector approved. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 12 December 2008, 5 February 2009, 9 March 2009 DATE OF JUDGMENT: 13 March 2009 EXTEMPORE JUDGMENT DATE: 9 March 2009 APPLICANT Solicitor Ms C Wilkinson Sparke Helmore Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr N Martin USU JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 13 March 2009 Matter No IRC 2151 of 2008 NOTIFICATION UNDER S 146A BY LABOUR CO-OPERATIVE LIMITED TO REFER A DISPUTE WITH NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION RE INDUSTRIAL INSTRUMENT DECISION [2009] NSWIRComm 32 1 Labour Co-Operative Ltd ("the Company") and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (also known as the United Services Union, or USU) have entered into an agreement pursuant to s 146A of the Industrial Relations Act 1996 ("the Act") (Matter No IRC 1911 of 2008). This matter arises pursuant to that agreement. 2 The parties seek the assistance of the Commission to settle terms of an enterprise agreement to apply to employees of the Company engaged in the NSW Local Government Sector. 3 The matter was subject to proceedings on 12 December 2008, 5 February 2009 and 9 March 2009. Ms C Wilkinson, Solicitor of Sparke Helmore Lawyers, represented the Company in proceedings. Mr R Nassif of the Local Government Association of New South Wales appeared for Tamworth Regional Council. Mr N Martin and Mr L Hutchinson appeared for the USU. 4 The parties engaged in negotiation in good faith, resulting in an agreement, submitted for approval by the Commission, titled "Labour Co-Operative Limited and United Services Union Local Council Services Casual Employees Enterprise Agreement 2009-2012" (Ex 3) ("the Agreement"). 5 A copy of the Agreement, signed by the General Secretary and the General Manager of the Company, was filed in the Registry on 12 March 2009. 6 The Application for Approval of the Agreement (Ex 1) is supported by the necessary Statement of Particulars and an affidavit sworn by Mr Jeffrey Aiken, General Manager of the Company. 7 Mr Aiken was not required for cross examination on his affidavit, which provides a comparison of the Agreement with the Local Government (State) Award 2007 364 IG 453, and deposes in part: 2 Labour Co-operative Ltd is a not for profit organisation that employs casual labour hire workers the objective of placing casual labour hire workers and securing permanent employment with either the organisation with which they are placed or another organisation in the same industry. 3 Labour Co-operative Ltd and its subsidiaries provide labour hire services to local councils as part of our operations. 4 Labour Co-operative Ltd and its subsidiaries pay the labour hire employees in accordance with the industrial instruments applicable to the work undertaken by the workers at the site where the employees are deployed, including local government. 5 This ensures that our labour hire workers performing the same work as employees of, for example local councils, working on or at the same site are paid at the same rate. 6 This practice is included in our contractual arrangements with our clients, such as local councils. Our contractual arrangements require Labour Co-Operative Ltd and its subsidiaries to determine labour hire rates based on the rates of pay applicable to the workers deployed to the particular site. 7 Applicable rates of pay at local councils can vary. Labour Co-operative Ltd and its subsidiaries aim to achieve certainty of rates of pay for its' employees deployed to local councils in this enterprise agreement. … … 11 The Agreement does not apply to all employees of Labour Co-operative Ltd and its subsidiaries. Labour Co-operative Ltd and its subsidiaries employ other casual employees who are not deployed to work for local councils but in other industries. This Agreement does not apply to those other industries. Employees not deployed to local councils, not covered by the Agreement are not subject to any disadvantage as a result of this Agreement. They are employed and paid under other industrial instruments or contracts of employment. It is not necessary or reasonable for this Agreement to cover excluded employees. 12 The Agreement does not breach the relevant statutory requirements of any antidiscrimination legislation including the Anti-Discrimination Act 1977 (NSW). 13 No party has entered into the Agreement under duress. … … 16 The main objectives of the Agreement are to: · create certainty for the employees as to the terms and conditions of their employment; · ensure pay equity by providing employees with rates of pay that are the same as the rates of pay provided to local council employees in comparable positions at the site or location where employees are deployed., · provide employees with terms and conditions of employment consistent with the local government industry, and · preserve minimum pay and conditions of employees in light of the competitive nature of the labour hire industry. … … 22 The Agreement, on balance, does not provide a net detriment to employees covered by the Agreement when compared with the terms and conditions of employment that would otherwise apply. The terms and conditions included in the Agreement either: · Refer to the relevant clauses of the Local Government (State) Award 2007; or · Refer to the relevant clauses of a site industrial agreement where the terms and conditions in that instrument are applicable to the nature of work undertaken by the employee at that site. Where the applicable terms of the site industrial agreement are more beneficial than the Local Government (State) Award 2007 the more beneficial terms apply. 8 I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary tests. 9 The Labour Co-Operative Limited and United Services Union Local Council Services Casual Employees Enterprise Agreement 2009-2012 is approved in the terms of the application with effect from 9 March 2009 to remain in force for a period of three years therefrom. oo0oo 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.