Enertrade Certified Agreement 2006-2009 [2009] QIRC 70 (2009) 191 QGIG 120

[Extract from Queensland Government Industrial Gazette, dated 19 June, 2009, Vol. 191, No. 6, pages 120-121] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 173 - terminating agreement after its nominal expiry date Energy Infrastructure Management formerly Enertrade Pipeline Management AND Queensland Services, Industrial Union of Employers and Others (CA/2009/47) ENERTRADE CERTIFIED AGREEMENT 2006-2009 COMMISSIONER FISHER 11 June 2009 Certified Agreement - Termination of certified agreement - After nominal expiry date - Parties bound - Background - Process followed - Act provisions - Public interest - Termination of agreement approved. DECISION This is an application by Energy Infrastructure Management formerly Enertrade Pipeline Management (Enertrade) for termination of the Enertrade Certified Agreement 2006-2009 (the Agreement) pursuant to s. 173 of the Industrial Relations Act 1999 (the Act). The Agreement was certified by the Queensland Industrial Relations Commission on 21 March 2006 and was operative from that date until its nominal expiry date on 20 March 2009. The matter was listed for hearing at 9.30 a.m. on 28 May 2009 and all parties bound by the Agreement were notified of the proceedings. At the hearing Mr B. Shalders, General Manager Operations of Energy Infrastructure Management Pty Ltd (EIM) together with Mr S. Witts, Industrial Relations Advisor appointed by EIM shareholders at AGL and Arrow Energy represented the Applicant. Mr Shalders outlined the background to this matter in that Enertrade, previously Queensland Power Trading Corporation was trading in 2008 and following instructions by the Queensland Government to divest the assets was wound up. As part of the winding up of the company employees were offered positions elsewhere and subsequently elected to sign individual contracts with terms and conditions equivalent to the Enertrade Certified Agreement plus other incentive schemes based on performance. Mr Witts then explained the process he followed in endeavouring to contact all the applicable unions bound by the Agreement to notify them of the intention to apply for the termination of the Agreement. He requested the unions to contact the Applicant and outline their position in writing. At the time of the hearing the following three unions indicated in writing they had no objection to the termination of the Agreement: Queensland Services, Industrial Union of Employees; The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees; and The Electrical Trades Union of Employees Queensland. Since the hearing correspondence dated 29 May 2009 has been received from the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees indicating their agreement with the termination of the Agreement. Section 173 of the Act provides as follows: "(1) After a certified agreement's nominal expiry date, the following persons may apply to the commission to terminate a certified agreement - (a) the employer; . . . (2) If the agreement does not provide for the way it may be terminated after the agreement's nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The Commission must approve the termination if and only if, satisfied - . . . (b) for an agreement that does not provide for the way it may be terminated - it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission's approval takes effect.". -- 1 of 2 -- 2 As the Agreement does not provide particular termination conditions, the Commission must be satisfied it is in the public interest to terminate the Agreement in accordance with s. 173(3)(b). In addressing the public interest requirement Mr Witts stated that the public interest lies in terminating an agreement that is no longer relevant because the company which was bound by it has been wound up. In this regard reference was made to the reasons for the application for termination outlined above by Mr Shalders. Further Mr Shalders indicated that the Agreement covered employees in the electricity industry whereas in fact the primary business now carried on is gas transmission within the gas industry. He said the current Agreement is limiting the Applicant's ability to retain employees within a competitive industry. In view of the submissions provided by the Applicant and in the absence of opposition from the union parties the Commission is satisfied that for the reasons given by Mr Shalders and Mr Witts it is in the public interest to terminate an agreement that is no longer relevant or applicable. Accordingly, the Commission approves the termination of the Enertrade Certified Agreement 2006-2009 effective 11 June 2009. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 28 May Released: 11 June 2009 Appearances: Mr B. Shalders and with him Mr S. Witts and Ms J. Allwright on behalf of the Applicant. Government Printer, Queensland The State of Queensland 2009. -- 2 of 2 --