Ergon Energy Corporation Limited & Ors v The Electrical Trades Union of Employees Queensland [2006] ICQ 11 (2006) 181 QGIG 533

[Extract from Queensland Government Industrial Gazette, dated 7 April, 2006, Vol. 181, No .13, page 533-534] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal from the joint decision of the industrial commission Ergon Energy Corporation Limited and Ergon Energy Pty Ltd and Queensland Electricity Transmission Corporation Limited t/a Powerlink Queensland AND The Electrical Trades Union of Employees Queensland (C/2006/13) PRESIDENT HALL 24 March 2006 REPORT ON DECISION (as edited) In giving a decision from the Bench on 10 March 2006, the President said: "On 13 December 2005, The Electrical Trades Union of Employees Queensland (ETU), filed an application to amend the Electricity Generation, Transmission and Supply Award - State 2002. In short form, the Union sought to vary the Award to include an electrical licensing allowance. The response of the now appellants was to seek an injunction restraining the ETU from progressing the matter on the ground that in pressing the claim the ETU was in contravention of no extra claim provisions contained in each of the Ergon Energy Certified Agreement 2005, the Energex, SEPL and SPARQ Certified Agreement 2005 and the Working at Powerlink 2005 Certified Agreement. It is common ground that each of those agreements is binding upon the ETU. The initial reply of the ETU was to amend the application to vary the Electricity Generation, Transmission and Supply Award - State 2002 so that any variation would not have force and effect whilst any particular certified agreement continued to operate. The appellants were not satisfied with that amendment and pressed the application for an injunction. By a decision of 2 March 2006, a Full Bench of the Queensland Industrial Relations Commission rejected the application for an injunction. This is an appeal against that decision. The point is a short one. It will suffice to take one of the awards, viz. the Working at Powerlink 2005 Certified Agreement. Comparable clauses are contained in each of the other agreements. By clause 4: "Where there is any inconsistency between the terms contained in this agreement and any corresponding terms of the award the terms and conditions of this agreement will take precedence. Where this agreement is silent on an issue the provisions of the award shall apply.". Consistently with the decision in Byram v Chater (1967) 65 QGIG 1013 and Australian Sugar Milling Association, Queensland v Australian Workers' Union of Employees, Queensland and Others (2002) 169 QGIG 113, it seems to me that the reference to 'the award' in clause 4 must be treated as a reference to the Electricity Generation, Transmission and Supply Award - State 2002 in the form which it took when the Agreement was made. That construction is confirmed by clause 23.2.1 which in dealing with certain allowances provides: "...has been absorbed in the Transmission Network Reliability Allowance and there will be no further claims.". It seems to me that had it been contemplated that the Award might have been varied whilst the Agreement was on foot and effect given to the variation, the clause would not have used the expression "has been absorbed" but the expression "has been and are to be absorbed". The method by which the Award is protected against variation is by clause 5 which provides: "It is agreed that during the life of this agreement, no extra claims shall be made by either party in terms of employment conditions. Notwithstanding, the parties may wish to pursue other specific agreements in accordance with part 10 of this agreement.". There are obviously inadequacies in clause 5. The Award might very well be varied otherwise than on the application of the ETU. To protect themselves against the cost impact of such a decision it will be necessary for the appellants to persuade the Commission to deal with the matter of absorption. But to the extent that they lawfully may, it is clear that the parties have sought to protect the Award against variation by, amongst other things, providing that the ETU amongst others will make no extra claims in terms of employment conditions. It seems to me that in pursuing the application as amended the ETU has done that and that the case for an injunction had been made out.". The President later said: -- 1 of 2 -- 2 "Having heard Mr Herbert of Counsel for the appellants and Ms Butler for the respondent, I adhere to the view which I tentatively formed this morning that the Court should grant injunctive relief on the ground that the only basis on which the discretion could be exercised not to do so was to allow the proceedings in the Commission to continue in any event. It seems to me that one cannot properly exercise the discretion to grant injunctive relief for the express purpose of allowing the breach of the agreement to continue. In those circumstances, I am content to make an order in terms of the draft. I sign the order and I initial the deletion of paragraph 4. My associate will arrange for it to be sealed by the Industrial Registrar.". Dated 24 March 2006. By the Court, [L.S.] G.D. SAVILL, Industrial Registrar. Released: 24 March 2006 Appearances: Mr A. Herbert instructed by Deacons for the Appellants. Ms T. Butler of Hall Payne Lawyers for the Respondent. Mr W. Lee on behalf of the Minister for Employment and Training, Department of Industrial Relations. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --