Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Eraring Energy re entitlements; ; Notification under section 146B by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Eraring Energy re sick leave balance be restored [2015] NSWIRComm 23

Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Eraring Energy re entitlements; ; Notification under section 146B by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Eraring Energy re sick leave balance be restored [2015] NSWIRComm 23 Hearing dates: 11 June 2015, 12 June 2015 Decision date: 03 September 2015 Before: Harrison DP Decision: The applications fail and I decline to intervene for the following reasons: (1) As discussed above, there was no transmission of business so as to enliven S101 of the Fair Work Act; (2) Employment with Eraring Energy was accepted without duress on the condition that 18 days sick leave accrual be afforded to Mr Gill and Mr Brands. This formed the contract of employment which contained other beneficial terms in respect to continuity of service for annual leave, long service leave and superannuation. It is not practical, fair or reasonable to separate one element of that contract and impose a new condition. (3) Neither Mr Gill nor Mr Brands have been treated unfairly, each have substantial sick leave accruals (Mr Gill 81 days; Mr Brands 88 days; at 5 June 2015) supported by cl 20.8 of the Enterprise Agreement. The Applications for relief are refused. Matter Numbers IRC 92 of 2014 and 220 of 2014 are concluded. Catchwords: Loss of accrued sick leave on change of employment – Employees transferring employment – New employment by arrangement on terms as alternative to redundancy – Choice by employees – Transmission of business – Argument of equity with other employees transferring employment. Held – New employment accepted on terms – No transmission of business. Application refused. Legislation Cited: Industrial Relations Act 1996 Fair Work Act 2009 Pacific Power Dissolution Act 2003 Cases Cited: New South Wales Independent Education Union and Allambia Pty Limited, trading as Cuddly Possums [2000] NSWIRComm 77 Urquhart v Automated Meter Reading Services (Australia) Pty Ltd [2008] FCA 1447 PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Construction, Forestry, Mining and Energy Union (NSW Branch) Origin Energy Eraring Pty Limited Representation: Counsel: Mr A Gotting (Respondent)