EM2011/507, Transcript of Proceedings [2011] FWATrans 847 (12 August 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 59797-1

DEPUTY PRESIDENT SAMS

EM2011/507

Sch. 6, Item 5 - Application to terminate an enterprise instrument - an award

State Water Corporation
and
Public Service Association and Professional Officers Association Amalgamated Union of New South Wales
(EM2011/507)
State Water Corporation (Storages, Operations and River Infrastructure Staff) Award 2007

[RA120781 Print ]]




Sydney

9.32AM, FRIDAY, 5 AUGUST 2011

PN1

THE DEPUTY PRESIDENT: I'll have the appearance.

PN2

MR D. GARDNER: Yes, your Honour. If I have the tribunal's permission, Gardner, initial D; with me is MS K. RICHARDSON. We're appearing for the State Water Corporation. I also have been asked to mention the appearance of MR E COLE. He's the industrial officer of the Community and Public Sector Union State Public Services Federation New South Wales branch; that being the employee organisation representing the union employees at State Water Corporation, which is also the respondent party to the relevant industrial instrument, the subject of the application.

PN3

THE DEPUTY PRESIDENT: Yes. I similarly have received a copy of that advice from the union and also indicating that it consents to the application of the employer to terminate the award.

PN4

MR GARDNER: I'm glad you have that, your Honour, because that's been the only development since the filing of the application.

PN5

THE DEPUTY PRESIDENT: Thank you. We'll proceed then, Mr Gardner. Permission is granted.

PN6

MR GARDNER: Your Honour, this is an application under the Fair Work Act Transitional Provisions and Consequential Amendment Act, schedule 6, item 5, for the termination of what is the State Water Corporation (Storages, Operations and River Infrastructure Staff) Award 2007. For the record, too, the award ID I believe is RA120781, for that instrument. Your Honour, I don't know whether you wanted me to step through all of the items in the application. We've tried to make the application self-explanatory but I do have with me reference documents if required. Otherwise I could propose to sort of just supplement what's in the application with a few additional points.

PN7

THE DEPUTY PRESIDENT: Yes, do that.

PN8

MR GARDNER: Just by way of summary as well, State Water Corporation is one of the New South Wales state-owned corporations and it regulates the bulk of supply and storage of water services in the state; mainly most of the water except that regulated by Sydney Water. The instrument that is the subject of the application is an old New South Wales award that underpinned - or was the award in place before State Water Corporation had approved in the New South Wales Commission its current enterprise agreement, which is the State Water Corporation Enterprise Agreement of 2009.

PN9

That enterprise agreement relevantly provides - which is not in the application but it's at clause 3.2 of the enterprise agreement - that it prevails and is intended to be the prevailing terms and conditions of employment and replaces all other awards and agreements governing terms and conditions of employment. That's to all of those employees who are covered by that enterprise agreement, which as the application discloses, is the significant majority of all employees at State Water Corporation but for senior managers who are covered by common law arrangements.

PN10

There are a couple of employees who actually work across borders and those employees - I suppose in theory may or may not have been covered by the New South Wales instrument - but with certainty now that State Water Corporation has transitioned into the federal system, would be more relevantly and more appropriately covered by the modern Water Industry Award.

PN11

THE DEPUTY PRESIDENT: So does that mean the 2009 state enterprise agreement no longer applies?

PN12

MR GARDNER: No, the enterprise agreement continues to apply, your Honour, and in one sense the reason that this application is being made is in one sense a technical one, but one to gain better certainty for when the employer and employees start to bargain for a new enterprise agreement because - - -

PN13

THE DEPUTY PRESIDENT: And that will be under the federal system.

PN14

MR GARDNER: Yes. So they're moving from what is an old state enterprise agreement which took many, many years. I was in the last four months of that history of that instrument, but negotiations went for many years to get that instrument into place, so it was a hard-fought instrument. It in our submission comprehensively governs and replaces all other structures including the classification structures in the award. It was largely put in place, your Honour, to accommodate some pricing and restructural changes required as well as financial requirements required by an Independent Pricing and Regulatory Tribunal determination in relation to New South Wales bulk water suppliers.

PN15

As was part of that review the enterprise agreement put in place a totally different classification structure and the organisation itself has been transformed since then, so the enterprise agreement continues to serve its operational and financial requirements. Any new enterprise agreement will be done under the federal system, which includes - as your Honour would know - an assessment of the better off overall test. The parties would prefer, merely for certainty, that the federal modern award be the relevant reference instrument to save any confusion.

PN16

It's sort of relevant, your Honour, because as I've mentioned there are a handful of employees who actually are across borders because some of the state's water crosses borders on the border of Queensland and New South Wales and also New South Wales and Victoria. In fact, there may even be some water that crosses the border in terms of lakes with South Australia. I'm not sure, but it's possible. There's no doubt, in my submission, your Honour, that the State Water Corporation is under the federal system.

PN17

Again, while it's not in the application, the Fair Work Act itself at section 14 defines national system employers, including at subsection (6)(c) that it's any employers who, "Provide services for the supply, distribution or release of water." They're in the list of those double-negative employers who cannot be declared to be non-national system employers. Otherwise the relevant instrument, the award, is a division 2(b) state award and defined by the Act as an enterprise instrument because it's an award that only applies to State Water Corporation.

PN18

There's one other matter that again is not on the face of the application but I raise with your Honour in that it's one of the reasons why the award no longer has relevance as well, is that where that award does not make provision - and this is talking in the theoretical of course because if the enterprise agreement was not there then the award provides that where it doesn't make provision for certain terms and conditions, a New South Wales public sector instrument does. There's no doubt now that the State Water Corporation is not in that regime.

PN19

In fact, it seems to be a historical sort of legacy of when - even before the corporation became corporatised and it had some public sector history attached to it. In our submission that's another reason why the award is no longer relevant to the organisation and its employees.

PN20

THE DEPUTY PRESIDENT: How many employees are covered?

PN21

MR GARDNER: Just a moment, your Honour. Sorry, your Honour, I can't be entirely accurate. Apologies, too, because my client is based in Dubbo and is very ill - the person who has been instructing me. We're talking in the hundreds. It may be two to three hundred. I can't be any more precise, but we're talking about that number of people. It's not a large organisation and it's a fairly disbursed employee population because there may be - there are various offices of the organisation; one in Sydney, one in Dubbo, and then there are regional centres and operations which usually correspond with bodies of water and a handful of people who may be there responsible for the management of those water bodies. My understanding is that it's probably no more than 300 people all up.

PN22

THE DEPUTY PRESIDENT: Does the CPSU cover all of those people, do you know?

PN23

MR GARDNER: It doesn’t cover all of those people. There would be - in fact, during the - there would be maintenance people. There are some electrician-qualified employees. I'm aware from - and this again is going back to my involvement in the New South Wales Commission proceedings - there were a couple of other union parties involved in those discussions. Although they're not parties to the relevant award, they were involved in the formation of the enterprise agreement, which is the instrument that's remaining.

PN24

THE DEPUTY PRESIDENT: Yes, that's enough.

PN25

MR GARDNER: They were federally registered unions as well, which did cause some tension in the New South Wales commission. But I think the PSA, which was the state-based union party to this award, and it's the only union party to the state - the division 2(b) award, as it now is. That was the major union representative, but there were certainly other union parties who helped form the enterprise agreement that now wholly replaces the award in any event. It may be, too, that - again, it's speculation, but if the enterprise agreement process recommenced in the next year or so those other unions may be involved as industrial representatives.

PN26

But otherwise as the application shows, the bulk of the - I think 93.5 per cent of all of the workforce are covered by the enterprise agreement and there are 20 employees not. I suppose I could work out roughly how that - I think that's where we get to - 200, yes. Maths was never my strong point, your Honour. I think it's around two to three hundred, even looking at the application's figures. Again, those who are not covered are not covered on the terms of the instrument because they are in managerial positions in the corporation.

PN27

I think there are only 15 who would still be covered by the award if the award was the only instrument in application that - it's arguable that those 15 - if the enterprise agreement was not in place - their classifications would fall within the award. Again, that's talking in the theoretical, not the actual, because the enterprise agreement continues in operation. As is described in part 5.4.6 of the application, the award itself, even if it was to continue, under the Transitional Provisions Act, it will only continue until 31 December 2013 in any event.

PN28

Again, what the parties are trying to avoid is an uncertain application of that award which, if it was allowed to continue, would live part of its life through a new enterprise agreement or an enterprise bargaining process, which the parties would prefer it not.

PN29

THE DEPUTY PRESIDENT: Yes.

PN30

MR GARDNER: So in one sense it's really just to gain some certainty about the relevant reference instrument, and also a desire by the applicant to be part of the new industry award, as are other water suppliers in the country. I think the views of the parties themselves are also expressed in the fact that the - it's an unusual clause in the State Water Award, but the award itself allows it to be terminated on one month's notice, which is slightly unusual in my submission, which is what happened. So on 6 July State Water Corporation served notice on the union party of its intention to terminate the award on its own terms. That notice has been given and so it will take effect on 6 August 2011 on the face of the award.

PN31

In our application perhaps for convenience, your Honour, if there was an order to be made to terminate, perhaps the order is effective on 6 August to coincide with the intention of the parties to exercising a right on the face of the award to terminate its operation. They're all the submissions I had, your Honour.

PN32

THE DEPUTY PRESIDENT: Yes, All right. Thank you, Mr Gardner. The tribunal is satisfied that all of the relevant provisions of the Transitional Act in respect to the termination of this part 2(b) state award have been complied with. I note in any event the award ahs a self-terminating provision which has been described by Mr Gardner, but for a surety and certainty to the parties in anticipation of their enterprise agreement negotiations next year, it is appropriate that the tribunal terminates this award. I propose to make an order, therefore, to terminate the State Water Corporation (Storges, Operations and River Infrastructure Staff) Award 2007. The order shall take effect on and from 6 August 2011. The proceedings are concluded on that basis.

<ADJOURNED INDEFINITELY [9.50AM]