Industrial Relations Commission of New South Wales CITATION: Delta Electricity Employees Enterprise Agreement 2008 [2008] NSWIRComm 127 APPLICANT Delta Electricity RESPONDENTS Australian Workers' Union, New South Wales (AWU) Australian Institute of Marine and Power Engineers, NSW District (AIMPE) PARTIES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) Association of Professional Engineers, Scientists and Managers Australia (APESMA) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AFME&PKIU). Unions NSW FILE NUMBER(S): IRC 833 of 2008 CORAM: Harrison DP CATCHWORDS: Jurisdiction section 146A agreement - Application for approval of enterprise agreement - 4.75% wage increase - introduction of outage allowance - consolidation of 2004 agreement on retirement ill-health and 2005 enterprise agreement - single industrial agreement to apply to 12 March 2009 - application approved. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 12 June 2008 DATE OF JUDGMENT: 2 July 2008 EXTEMPORE JUDGMENT DATE: 12 June 2008 APPLICANT Mr E McLachlan LEGAL REPRESENTATIVES: RESPONDENTS Mr P McPherson (Unions NSW) Mr G Brock (APESMA) Mr D Wallace (AFME&PKIU) JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 2 July 2008 Matter No IRC 833 of 2008 DELTA ELECTRICITY EMPLOYEES ENTERPRISE AGREEMENT 2008 Application by Delta Electricity for approval of an Enterprise Agreement DECISION [2008] NSWIRComm 127 1 Delta Electricity ("Delta") has entered into a referral agreement with Unions NSW and affiliates pursuant to s 146A of the New South Wales Industrial Relations Act 1996 ("the Act"). The referral agreement (NREF 41 of 2007), filed with the Industrial Registrar, commits the parties to the provisions of the Act and the powers of the Commission conferred thereby. 2 Pursuant to that referral agreement (Exhibit 3 in this matter) Delta seeks the exercise of the Commission's powers to approve an enterprise agreement negotiated between the parties. 3 The application was subject to Hearing on 12 June 2008. 4 Mr E McLachlan appeared on behalf of Delta Electricity. Mr P McPherson appeared on behalf of Unions NSW; The Australian Workers' Union, New South Wales (AWU); Australian Institute of Marine and Power Engineers, NSW District (AIMPE); Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU); and New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU). Mr G Brock appeared on behalf of The Association of Professional Engineers, Scientists and Managers Australia (APESMA). Mr D Wallace appeared on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AFME&PKIU). 5 The application is supported by the necessary Statement of Particulars and an affidavit signed by Mr John Bund, General Manager Human Resources for Delta, certifying that the agreement complies with the relevant statutory requirements; the no net detriment test; was not entered into under duress; and complies with the principles for approval determined by the Commission. Mr Bund was not required for cross examination. 6 Mr Bund's affidavit (Ex 1) succinctly and effectively sets out the background and effect of the application in the following terms: 3. The parties to the 2005 Agreement have agreed that a new agreement should be made. 4. The proposed agreement will provide for an increase in salaries and allowances of 4.75%. The proposed agreement will incorporate the provisions of the Delta Electricity Enterprise Agreement 2004, which had provisions associated with retirement ill-health. This will enable all terms and conditions of employment currently in an industrial instrument to be incorporated in a single instrument. The only other change in the terms of the agreement is the replacement of the Project Services Allowance with an Outage Allowance (clause 5. 1 (b)). 5. In all other respects, the proposed Agreement will repeat the provisions of the 2005 Agreement. 6. The agreement will cover all employees of Delta Electricity except Senior Executives, totalling some 670 employees. 7. The exclusion of Senior Executives reflects custom and practice in the electricity generation industry and mirrors the provisions of the 2005 Agreement. 8. The nominal term of the proposed agreement is from the first pay period after 11 March 2008 until 12 March 2009. 9. The proposed Agreement complies with the Wage Fixing Principles, is not contrary to the public interest, does not provide a net detriment, is fair and just, was not entered into under duress and is in the interests of the parties to be approved. 10. The proposed Agreement complies with the provisions of the Anti-discrimination Act 1977. 7 Mr McPherson, supported by other union representatives, confirmed the content of exhibit 1 and advised that meetings of Delta employees had endorsed the proposed Enterprise Agreement by an overwhelming majority of 98 per cent. 8 I am satisfied that the material presented to the Commission adequately demonstrates that the Enterprise Agreement submitted for approval complies with all necessary tests. 9 The Delta Electricity Enterprise Agreement 2008 is approved in the terms of the application and as such is an industrial instrument enforceable pursuant to the Industrial Relations Act 1996. 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.