Notification under s. 130 by the AFMEPKIU NSW Branch of a dispute with EnergyAustralia re alleged non payment of skills retention allowance [2008] NSWIRComm 114

Notification under s. 130 by the AFMEPKIU NSW Branch of a dispute with EnergyAustralia re alleged non payment of skills retention allowance [2008] NSWIRComm 114

The Commission had jurisdiction and the No Extra Claims clause did not fundamentally restrain the application, but the MoU was an agreement between EnergyAustralia and the ETU applying cl 7 of the Industrial Agreement to specified Network Capital Expenditure work. The evidence showed that the MoU payments were made to employees materially affected by that work, while the claimed motor mechanics and motor body builders at Homebush and Wallsend were not shown to have work contracted out or likely to be contracted out under the MoU. They lost none of their contracting-out rights under cl 7, and it was not valid or fair to award them a payment that was consideration for giving up particular...

Jurisdiction
Australia
Judgment Date
01 July 2008
Procedural Posture
Notification of Industrial Dispute Under S 130 of the Industrial Relations Act 1996 and Small Claim Application Under Ss 379 and 380 / Decision After Attempted Conciliation and Hearing
Outcome
Application refused.
Legal Topics
['skills Retention Allowance' 'small Claims Procedure' 'referral Agreement' 'outsourcing and Contracting Out' 'no Extra Claims Clause' 'industrial Dispute Jurisdiction' 'memorandum of Understanding']
['industrial Relations' 'employment Law'] ['skills Retention Allowance' 'small Claims Procedure' 'referral Agreement' 'outsourcing and Contracting Out' 'no Extra Claims Clause' 'industrial Dispute Jurisdiction' 'memorandum of Understanding']

Case Brief

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Procedural Posture

Notification of Industrial Dispute Under S 130 of the Industrial Relations Act 1996 and Small Claim Application Under Ss 379 and 380 / Decision After Attempted Conciliation and Hearing

Legal Issues

  1. 1 ["Whether the Commission had jurisdiction to determine the Union's small claim concerning the skills retention allowance." "Whether the No Extra Claims provision in the EnergyAustralia Agreement 2006 restrained the Union's claim." 'Whether EnergyAustralia was required to pay the MoU skills retention allowance to the 26 employees identified by the Union.' 'Whether the employees represented by the Union were materially affected by the Defined Works covered by the MoU.' 'Whether it was just and equitable to order payment of the claimed allowance.']

Ratio Decidendi

The Commission had jurisdiction and the No Extra Claims clause did not fundamentally restrain the application, but the MoU was an agreement between EnergyAustralia and the ETU applying cl 7 of the Industrial Agreement to specified Network Capital Expenditure work. The evidence showed that the MoU payments were made to employees materially affected by that work, while the claimed motor mechanics and motor body builders at Homebush and Wallsend were not shown to have work contracted out or likely to be contracted out under the MoU. They lost none of their contracting-out rights under cl 7, and it was not valid or fair to award them a payment that was consideration for giving up particular...

Court Disposition

Application refused.

Orders

  • ['The application is refused.' 'Matter No IRC 2127 of 2007 is so concluded.']