Application to vary the Local Government (State) Award 2023 [2025] NSWIRComm 1047 (10 July 2025)

(1) The Development and Environmental Professionals' Association (DEPA);

(2) Local Government Engineers' Association (LEGA); and

(3) New South Wales Nurses and Midwives' Association (NSWNMA).

1. Also a respondent to the Award is the employer association, Local Government and Shires Association of NSW (LGNSW).
2. As set out in paragraph 2 of the Application, filed on 30 June 2025, the variations sought to the Award are:

(1) increases to the vehicle allowance rates in clauses 17(x)(j), 18A(i) and 18A(iii);

(2) an increase to the meal allowance in clause 17 (xiv);

(3) increases to the traineeship wage rates in clause 32E(xii); and

(4) a change in the name of a Federal Modern Award referenced in clause 46(ii)-(iv).

1. The grounds set out in the application for the variation sought are:

"3. Clause 46(ii)-(iv) of the Award reserves leave for the parties to apply to vary, respectively, the vehicle allowance rates, meal allowance and traineeship wage rates by reference to changes made to the Local Government Industry Award 2010 ("the Federal Award") being a Federal Modern Award.

4. By way of decisions of the Full Bench of the Fair Work Commission on 19 June 2025 rates for the rates set [therein] were set. A copy of those decisions are annexed herewith ... .

5. By way of earlier decision of the Full Bench of the Fair Wok Commission on 18 June 2020:

a. the title of the Federal Modern Award was updated to reflect a date of 2020 as opposed to 2010; and

b. the Federal Modem Award stopped making specific provision for traineeship wage rates and instead set those rates by reference to the Miscellaneous Award 2020. A copy of that Order is annexed herewith ... .

6. The effect of the variations sought in this application are to bring the Award in line with the provisions of the Federal Modem Award as contemplated by cl 46."

(Emphasis in original.)

1. In support of the application, an affidavit of Stephen Donley, Acting General Secretary of the USU, was filed on 2 July 2025. Relevantly, Mr Donley's affidavit set out:

"6. The 2023 Award contains Clause 46 which reserves leave for the parties to the Award to apply to have the 2023 Award varied in accordance with certain changes to the Local Government Industry Award, being a Federal Modern Award.

7. As a result of an order issued by the Full Bench of the Fair Work Commission ("FWCFB'') on 19 June 2025 rates for vehicle allowance, meal, and traineeship wage rates were set.

8. In response, it is proposed that variations be made to the 2023 Award as detailed in Schedule B of the Application accompanying this Affidavit. A comparison of the conditions of employment are outlined in Schedule A and Schedule B of the Application.

9. In addition, during the course of preparing this application errors were identified in the 2023 Award whereby it incorrectly referenced Federal Modern Awards in the leave reserve provisions. These errors are of a technical or typographical nature and do not substantively alter the conditions set by the 2023 Award. Variations to the 2023 Award are sought to rectify these errors.

...

12. To the best of my professional knowledge and belief, the proposed variations to the 2023 Award satisfy the requirements stipulated under section 23 and section 146(2) of the IR Act, in that:

a) The proposed variations to the 2023 Award ensure equal remuneration for men and women performing work of equal or comparable value, in compliance with section 23 of the IR Act and the decision of the Full Bench of the Commission in Re Equal Remuneration Principle [2000] NSWIRComm 113, delivered on 30 June 2000.

b) The proposed variations to the 2023 Award are in the public interest, as required under section 146(2)(a) and (b) of the IR Act.

(c) In accordance with section 146(2)(a), the proposed variations are consistent with the objects of the IR Act as set out in section 3 for the following reasons:

a. The proposed variations align with section 3(b), which seeks to promote efficiency and productivity within the State's industrial relations system. The salary-related allowances, which are applicable exclusively to NSW Local Government workers, provide a tangible benefit to employees in addressing cost-of-living pressures and reflect changes in productivity.

b. The proposed variations align with the newly inserted object under section 3(i) as the interim increase in salary-related allowances aims to improve the ability of NSW Local Government employers to attract and retain workers in trade positions, particularly in areas where skill shortages have been identified.

c. In relation to the broader objects outlined in section 3(a) to (h) of the Act, the proposed variations do not modify the substantive provisions of the existing Award, which was made and approved by this Commission on 26 June 2023. The proposed amendments operate within the established framework of the Award, ensuring continuity and consistency with the principles of fairness, equity, and justness that underpin industrial relations in NSW.

13. Pursuant to section 146(2)(b), the proposed variations serve the interests of the New South Wales economy and the likely effect of this decision on the economy will be beneficial by ensuring that salary related allowances in the NSW local government sector retain parity for similar allowances in related sectors.

14. To the best of my knowledge and belief, the proposed variations to the 2023 Award comply with all relevant statutory requirements, including the provisions of the Anti-Discrimination Act 1977 (NSW)."

(Emphasis in original.)

1. The Application was listed before the Industrial Relations Commission (Commission) on 3 July 2025. At that time, each of the respondents to the award, through their relevant representatives set out on the cover page of this Decision, submitted that their organisations consented to the Application, and for the reasons set out in the Application, and as developed by Mr Daniel Papps, a solicitor employed by the applicant, at that listing.
2. Having heard from Mr Papps and having had each of the respondents indicate their consent to the application, the Commission indicated that it was satisfied there was a proper basis to make the variation sought by the Application. However, the order and reasons would be reserved because a key document in the Application contained formatting errors, and the Commission would need to receive a correctly formatted version of the document before the variation could be ordered.
3. That decision, and the reasons for it are set out herein.

The requirements of the IR Act for award variation

1. Part 1 of Chapter 2 of the Industrial Relations Act 1996 (IR Act) sets out the powers of the Commission as to awards. Section 17 sets out the powers of the Commission to vary or rescind an award, being:

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only -

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

1. Given the consent of all the parties to the variation the Commission clearly has the power to make the variation as sought. Because the variation gives effect to the intention of the parties when the award was made the Commission also considers that it is not contrary to the public interest to make the variation, and that there is a substantial reason to make the variation.
2. It is not necessary to set out in detail the requirements of section 11, but suffice to say that the applicant and each of the respondents to the award are eligible to have applied for the Award and the variation, and given the coverage of the award, or the nature of the employers bound, each of them clearly has a sufficient interest in the Award and the variation.
3. It is also not necessary to set out in detail the requirements of section 13. It is sufficient to note that the variation has been provided in writing and will be processed and published by the Industrial Registrar in due course, after being signed by a member of the Commission. It is also relevant to set out that the variation does not detract from compliance by the Award with a range of requirements, including that it contains a dispute resolution procedure.
4. Section 15 sets out the requirements as to when an award may come into force, and in this case when the variation may come into force. The variation is sought to apply from the first full pay period on or after 1 July 2025. The application was lodged with the Industrial Registrar before that date.
5. Section 146(2) of the IR Act provides that:

...

(2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to -

(a) the objects of this Act, and

(b) the state of the economy of New South Wales and the likely effect of its decisions on that economy, and

...

1. The Commission considers that, at large, the public interest supports the making of the variation as the variation gives effect to the intention of the parties, and of the Commission in making the award. It does this by applying variations which the Award says ought to be incorporated when the corresponding Federal Modern Award is varied.
2. To the extent that the objects of the IR Act impact on the assessment of the public interest for this purpose, the Commission considers that objects (e) and (i) support the public interest being in favour of the variation being made. None of the objects otherwise suggest that it would be against the public interest to make the variation as sought.
3. Given the minor increases effected by the variation, the state of the economy New South Wales is unlikely to be impacted in any material way by making the variation. Consequently, this consideration does not bear on the question of the public interest in making the variation.
4. While section 17 does not specifically direct the Commission that the requirements set out in Division 2 need be addressed in varying an award, and notwithstanding the minor changes sought by the variations, the Commission considers two matters should expressly be addressed in considering the variation.
5. Firstly, it should be specifically observed that the variations sought do not impact any of the mandatory requirements of Division 2, such as maximum ordinary hours of employment, minimum sick leave entitlements, and the prohibition on cashing in of accumulated sick leave.
6. Secondly, and notwithstanding section 17 not specifically requiring consideration, the Commission considers it appropriate that the requirements of sections 21 and 23 nevertheless be addressed.
7. The Commission determines that it is appropriate to proceed on the presumption that the Award properly provides for equality as to equal remuneration and other conditions for men and women doing work of equal or comparable value. This is especially the case as the award was only recently made.
8. The variations themselves do not on their face raise concerns as to the Award continuing to provide equal remuneration and other conditions for men and women doing work of equal or comparable value. Given this, and the matters set out in the preceding paragraph, the Commission is satisfied the equal remuneration requirements of Division 2 are not offended by making the variation.

Variation to references to a Federal Modern Award

1. Included in the Application was a minor variation to change references in the Award to a related Federal Modern Award. Specifically, the Application sought to change references from the Local Government Industry Award 2010 to instead be references to the Local Government Industry Award 2020.
2. During the hearing on 3 July 2025, Mr Duffy, appearing for LGNSW, submitted that the Award as originally made contained a reference to the 2020 Federal Modern Award, and that the reference in the current consolidated version of the Award to the 2010 Federal Modern Award had been introduced in error.
3. A search of the Commission's online publication of current awards establishes that Mr Duffy's submission is correct.
4. Accordingly, the Commission does not propose to make the variation sought in so far as it relates to the name of the related Federal Modern Award. Instead, the Commission has determined to direct the Industrial Registrar to correct errors introduced into the consolidated version of the Award appearing on the Commission's website.

(1) The variation set out in the Schedule A filed by the applicant on 3 July 2025 be made and should apply from the first pay period on or after 1 July 2025.

(2) The variation set out above shall come into force on 1 July 2025.

1. The Commission directs the Industrial Registrar to correct errors introduced into the consolidated version of the Award relating to the Local Government Industry Award 2020 in that consolidation.

30 July 2025 - 30 July 2025 - Paragraph 4(1) amended to correct references to award clauses, made pursuant to r9.4(3) of the Industrial Relations Commission Rules 2022.