State Water Corporation v Community and Public Sector Union, SPSF Group, NSW Branch

[2011] FWA 5998

[2011] FWA 5998

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 5 - Application to terminate an enterprise instrument - an award

State Water Corporation
v
Community and Public Sector Union, SPSF Group, NSW Branch
(EM2011/507)

Water, sewerage and drainage services
DEPUTY PRESIDENT SAMS	SYDNEY, 2 SEPTEMBER 2011

Application for an order to terminate the State Water Corporation (Storages, Operations and River Infrastructure Staff) Award 2007.

[1] On 28 July, 2011, the State Water Corporation (‘the applicant’) made an application, pursuant to Schedule 6, Part 2, Div 2, Item 5 of the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (‘the Transitional Act’) to have Fair Work Australia terminate an enterprise instrument known as the State Water Corporation (Storages, Operations and River Infrastructure Staff) Award 2007 (‘the Award’). The applicant employs up to 300 employees engaged in the bulk supply and storage of water in NSW outside the regulation of Sydney Water Corporation. The parties are presently covered by the State Water Corporation Enterprise Agreement 2009.

[2] Before terminating the above Award, FWA is required to take account of a number of matters in Item 5(4) of Schedule 6 Part 2, Div 2. These are:

(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;

(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;

(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;

(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

(g) the views of the persons covered by the enterprise instrument;

(h) any other matter prescribed by the regulations.

[3] At a hearing of the application on 5 August 2011, Mr D Gardner appeared, with permission, for the applicant and also mentioned the matter on behalf of the Community Public Sector Union SPSF Group NSW Branch (‘the Union’). Mr Gardner addressed each of the matters FWA is required to take into account in determining the application and outlined the nature of the applicant’s business and its history of industrial regulation.

[4] Even though the Award has a nominal term which expired on 6 August, 2011, Mr Gardner submitted that the application was intended to address any uncertainty before the parties engage in future enterprise agreement negotiations. By letter dated 29 July 2011, the Union indicated that it consented to the application for the termination of the Award.

[5] Having considered all of the relevant factors in Schedule 6, Part 2, Div 2, Item 5(4) of the Transitional Act, and given the consent of the Union, I am satisfied that the application has been made in accordance with the Transitional Act and that the application should be granted.

[6] The termination of the Award will operate on and from the 6 August, 2011.

DEPUTY PRESIDENT

Appearances:

Mr D Gardner, Maddocks Lawyers, for the applicant and the Community and Public Sector Union.

Hearing details:

2011
SYDNEY
5 August

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