Industrial Relations Commission of New South Wales CITATION: Delta Electricity Employees Enterprise Agreement 2009 [2009] NSWIRComm 170 Delta Electricity (Applicant) The Australian Workers' Union, New South Wales; Association of Professional Engineers, Scientists and Managers Australia; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; PARTIES: Australian Institute of Marine and Power Engineers, NSW District; Construction, Forestry, Mining and Energy Union (NSW Branch); Electrical Trades Union of Australia, New South Wales Branch; New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; Unions NSW (Respondents) FILE NUMBER(S): IRC 1519 of 2009 CORAM: Harrison DP CATCHWORDS: Application for approval of enterprise agreement - Referral Agreement pursuant to s146A - agreement approved with effect till 11 March 2011 - wage increase supported by productivity and attendance initiatives. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 8 October 2009 DATE OF JUDGMENT: 14 October 2009 EXTEMPORE JUDGMENT DATE: 8 October 2009 Mr S Gurney (Applicant) Delta Electricity LEGAL REPRESENTATIVES: Mr P McPherson (Respondents) Unions NSW JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 14 October 2009 Matter No IRC 1519 of 2009 DELTA ELECTRICITY EMPLOYEES ENTERPRISE AGREEMENT 2009 Application by Delta Electricity for approval of an Enterprise Agreement DECISION [2009] NSWIRComm 170 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 21 of 2009), 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 1 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 8 October 2009. 4 Mr S Gurney appeared on behalf of Delta Electricity with Mr J Bund. 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); Association of Professional Engineers, Scientists and Managers Australia (APESMA); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AFME&PKIU); Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU); Electrical Trades Union of Australia, NSW Branch (ETU); New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU); and the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA). 5 The application (Ex 3) is supported by the necessary Statement of Particulars and an affidavit (Ex 2) 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 succinctly and effectively sets out the background and effect of the application in the following terms: 3. The parties to the 2008 Agreement have agreed that a new agreement should be made. 4. The proposed agreement will provide for two annual increases in salaries and allowances of 3.5% and for additional employer contributions to employees' superannuation of 1% in the first year and a further 1% in the second year. Amendments to the 2008 Agreement include clarification of part-time employment provisions, a revised grievance and disputes clause and new provisions covering consultation and delegate's rights and responsibilities. The parties have also agreed to establish committees to review the tradesperson and power worker skills development programs, to address improvements to power station operations and to consider impairment and fatigue management systems. Delta will also introduce an enhanced attendance review policy. 5. In all other respects the proposed agreement will repeat the provisions of the 2008 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 2008 Agreement. 8. The nominal term of the proposed agreement is from the first pay period after 11 March 2009 until 11March 2011. 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. 11. The parties understand the effect of the proposed Agreement. The proposed Agreement was explained to employees of Delta at mass meetings held on 2 and 3 July 2009. 7 Mr Gurney submitted that the Agreement represented a good, negotiated outcome providing a real wage increase to employees with productivity and efficiency initiatives detailed in a summary of outcomes of the negotiations (Ex 5) under the headings: Attendance review Improvements to power station operation Revised model for tradespersons and power workers Impairment and fatigue management systems E-Leave Part time employment Contractor entry procedure and union delegates Grievance and disputes procedure Allowances Christmas period arrangements Consultation 8 Mr Gurney emphasised the importance of a revised Policy (Ex 7) and associated Corporate Standard (Ex 8) on attendance review. Mr Gurney described the changes in the following terms (TR 8/10/09, pp3, 4): Gurney: … The substantive change that Delta is implementing through the new procedure and new standard is to introduce certain trigger points by which once an employee reaches those trigger points in respect of uncertificated absences, those being at 30 hours, 45 hours and 60 hours. That then triggers certain things to occur ranging from an initial discussion with the employee's team leader through to the involvement of the manager at 45 hours and through to a requirement for further absences to be supported by a medical certificate after 60 hours. It also makes available to employees various forms of assistance through Delta's Occupational Health staff through access to the Employees Assistance Programme, workers health centres and other agreed medical assessments. Again, your Honour, all designed to improve the level of sick leave at Delta… 9 Mr McPherson, on behalf of Unions NSW and those unions party to the proposed agreement, confirmed consent to the Agreement (Ex 4) and consensus with the affidavit of Mr Bund (Ex 2), advising that Delta employees had expressed overwhelming support for the proposed agreement. 10 Mr McPherson acknowledged the changes in sick leave policy directed at assisting employees to reduce non-certificated sick leave. Mr McPherson expressed appreciation for the role of all concerned in the negotiating phase, particularly the officials and delegates of those unions directly involved in a complex negotiating process. 11 I am satisfied that the material presented to the Commission adequately demonstrates that the Enterprise Agreement submitted for approval complies with all necessary tests. 12 I commend and endorse the efforts of the parties and the outcome achieved. The revision of sick leave administration is particularly commendable, resting on the foundation of sick leave for sick people with a scheme of counselling and support to reduce sick leave by health improvement initiatives and removal of the basis for any assertion of sick leave being accessed in other than proper circumstances. 13 The Delta Electricity Employees Enterprise Agreement 2009 is approved in the terms of the application and will remain in force until 11 March 2011. 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.