The Linfox Australia Pty Ltd - N.U.W. (NSW Branch) Tempe Processing Centre (Operations) Enterprise Agreement 2005 - 2007 [2005] NSWIRComm 102 (4 April 2005)

Last Updated: 7 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : The Linfox Australia Pty Ltd - N.U.W. (NSW Branch) Tempe Processing Centre (Operations) Enterprise Agreement 2005 - 2007 [2005] NSWIRComm 102

FILE NUMBER(S): 619

HEARING DATE(S): 04/04/2005

EX TEMPORE DATE: 04/04/2005

PARTIES:

Applicant

National Union of Workers (New South Wales Branch)

Respondent

Linfox Australia Pty Limited

Intervener

Transport Workers' Union of Australia, New South Wales Branch

JUDGMENT OF: Backman J

LEGAL REPRESENTATIVES

Applicant

Mr A. Joseph of Counsel

Mr S. Mueller, NUW.

Respondent

Mr P. Smith

Intervener

Ms D. Leahy

Mr T. O'Donnell

CASES CITED:

LEGISLATION CITED:

JUDGMENT:

- 2 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Backman J

4 April 2005

Matter No IRC 619 of 2005

The Linfox Australia Pty Ltd - N.U.W. (NSW Branch) Tempe Processing Centre (Operations) Enterprise Agreement.

Intervention by the Transport Workers Union in relation to the application for approval of an Enterprise Agreement between the National Union of Workers (NSW Branch) and Linfox Australia Pty Limited.

EX TEMPORE DECISION

[2005] NSWIRComm 102

1 The Transport Workers Union ("TWU") has sought to intervene in an application ("the application") presently before the Commission for approval of an enterprise agreement entitled Linfox Australia Pty Limited NUW Tempe Processing Centre (Operations) Enterprise Agreement 2005, ("the agreement"). The application is brought by the National Union of Workers, New South Wales Branch ("NUW"). The respondent to the application is Linfox Australia Pty Limited ("Linfox").

2 Today, the TWU has submitted that the application should not be approved on the basis that the agreement does not meet the "no net detriment" test, which is a condition for the approval of enterprise agreements under s35(1)(b) of the Industrial Relations Act 1996 ("the Act"). The basis for the submission appears to be that the rates of pay applicable to employees falling within the terms of the agreement, and, which apply by virtue of clause 8 of the agreement and Attachment A to the affidavit of Derrick Belan sworn 23 March, 2005, are less than the rates of pay which apply under clause 15 and appendix A of a proposed enterprise agreement between the TWU and Linfox in relation to the Tempe site ("Linfox Model Enterprise Agreement").

3 This may or may not be the case. The flaw in the TWU's argument is that the Linfox Model Enterprise Agreement for the Tempe site has never been formally approved. It can therefore have no application to the Tempe site, nor can it be used to compare the rates of pay which apply by virtue of clause 8 of the agreement and Attachment A of Mr Belan's affidavit.

4 Mr Belan, the State Secretary of the NUW also deposes in another affidavit sworn on 2 February, 2005 that the relevant principles for approval of an enterprise agreement have been complied with (including those principles governing the "no net detriment" condition under s35(1)(b)). There is no evidence to the contrary before me.

5 In a statement made by Tony O'Donnell, an official of the TWU, which was tendered by the TWU in support of its submission that the agreement should not be approved, it was asserted that the TWU has eight members at the Tempe site. The NUW and Linfox contended that it had no more than two members employed by Linfox at the Tempe site. I allowed the statement to be admitted into evidence on the basis that the TWU currently has members at the Tempe site.

6 Any TWU members who are employed by Linfox at the Tempe site, only fall within the terms of the proposed agreement if their employment is regulated by the Storemen and Packers General (State) Award, as varied from time to time: Clause 3 of the agreement. This is a matter of construction of the Award which is a separate consideration from, and not dependant upon, whether or not the agreement is approved.

7 For all the foregoing reasons I reject the TWU's application that the agreement should not be approved, and, I will proceed to hear the application for approval of the agreement forthwith.

Orders

8 I make the following orders:-

(i) leave to intervene by the TWU is granted;

(ii) the application by the TWU that the Commission not approve the Linfox Australia Pty Limited - NUW (NSW Branch) Tempe Processing Centre (Operations) Enterprise Agreement is declined.

LAST UPDATED: 04/04/2005