Local Government Engineers' Association of New South Wales v MidCoast Council

Applicants' initial submissions

1. The Unions were succinct in their initial written submissions, relevantly submitting: "3. The history of this clause was summarized in LGEA v MidCoast Council [2021] NSWIRComm 1081 and LGEA v MidCoast Council (No 2) [2022] NSWIRComm 1069, and need not be restated in detail here. In short: a. employees had historically negotiated above-minimum superannuation contribution entitlements, which were included in predecessor instruments; b. in the negotiations for the 2019 Agreement, the parties were unable to agree as to whether these should be absorbed into any future increases to the minimum guarantee, and instead resolved to refer the matter to this Commission for binding resolution via 'arbitration'; and c. as the issue remained pending before the Commission at the time the 2022 Agreement was negotiated, the clause was replicated. 4. The Applicants seek an award confirming that the additional superannuation payments are not absorbable, in the terms filed with these submissions. As the Applicants understand matters, the Chief Commissioner has pursuant to Wage Fixation Principle 10.1 has allocated the matter to a single Commissioner for determination as an ordinary dispute, and thus the 'special case principles' do not apply. 5. The matter is simple. It fundamentally turns on what was originally agreed; that is, what the deal precisely was when the parties agreed on the initial superannuation increases. The Applicants contend that it was universally understood and agreed at the time, for sound economic, social and industrial reasons, that these increases would not be absorbed into any future superannuation increases. … 7. It is difficult to imagine clearer evidence of a meeting of the minds. It is unclear if MidCoast now actually contests that this was the agreed position at the time. 8. As a general principle, where the parties have themselves agreed that conditions are acceptable to them, and they otherwise improve on minimum standards, the Commission would be satisfied that in the context of the particular employment they are 'fair and reasonable' within the meaning of s. 10 of the Industrial Relations Act 1996 (NSW), noting the primacy of consent in the Commission's award-making function. No countervailing factors exist here which would suggest otherwise; the fact that it involves an additional cost to MidCoast is not sufficient. There is additionally a strong public interest in holding parties to their industrial bargains." [Emphasis in original. Footnote omitted.]
2. The Unions' initial submissions also referenced the extended history of enterprise agreements at MidCoast County Council over many years. These submissions relied on the evidence of MidCoast County Council management and union witnesses of the long-term intention to set superannuation rates above the prevailing legal minimum.

Respondent's submissions

1. The respondent set out submissions as to legal impediments to the making of the award sought, submissions against the award as to merits, and objections to certain aspects of the award as drafted.
2. The submissions were: "Introduction … 2. The Respondent opposes the making of the Award as sought by the Applicants. 3. The Respondent submits that the making of the proposed Award or any award which enshrines for a group of employees in perpetuity with a superannuation payment 6% greater than the rate in the Superannuation Guarantee (Administration) Act 1992 (Cth) would be contrary to sections 17 and 10 of the Industrial Relations Act 1996 (NSW) (the IR Act). 4. Secondly, the proposed Award itself has a number of issues such that the Commission should not make the proposed Award. 5. Finally, as set out below this matter should be heard pursuant to the wage fixing principles. … Background 7. MidCoast County Council (trading as MidCoast Water) was dissolved on 1 July 2017 and absorbed by the Respondent. MidCoast Water was responsible for providing water and sewer services across the region covered by former Gloucester Shire Council, Greater Taree City Council and Great Lakes Council. These three former entities had been merged in May 2016 to create the Respondent. All three former Councils employed their employees under Award based arrangements and the former MidCoast Water employees were covered by an Enterprise Agreement. 8. Following the dissolution of MidCoast Water, the Respondent continued to apply the pre-existing Enterprise Agreement covering MidCoast Water in accordance with the terms of the Midcoast County Council Enterprise Agreement 2015 (378 IG 219) and in particular clause 3.2 of this Agreement. 9. As of 1 July 2023, the Respondent employs 1,041 employees with a full-time equivalent workforce of 887.7 employees. Of these, 179 employees work directly in the provision of Water and Sewer services. 10. The proposed Award in this matter would cover both employees of the former MidCoast Water entity, as well as employees employed under the Enterprise Agreement by MidCoast Council between 1 July 2017 and 25 May 2019. The proposed Award would cover persons whose work/employment is not covered by either the 2019 or 2022 Agreement. 11. The group of employees presently employed who would be covered by the proposed Award numbers 121 employees. Of these 121 employees, thirteen no longer work directly in the provision of Water and Sewer services and are not covered by the MidCoast Council Water Services Enterprise Agreement 2022. Additionally, as of 1 July 2023, there are 58 employees who would be covered by the proposed Award but are covered by the MidCoast Council Water Services Enterprise Agreement 2022. These employees, like the remainder of the employees employed by the Respondent, would receive superannuation payments in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). 12. When the 25 May 2019 Enterprise Agreement was finalised, it covered 163 employees. However, 42 employees have subsequently left employment with the Respondent. … 2019 Enterprise Agreement 14. The MidCoast Council Water Services Enterprise Agreement 2019 (386 IG 714) (the 2019 Agreement) was negotiated following the amalgamation of MidCoast Water into the Respondent. Following the amalgamation, the Respondent in accordance with clause 3.2 of the 2015 Agreement, continued to apply that Agreement to the relevant employees. … 16. … Over the course of renegotiations for an Agreement across 2018 and 2019 the Respondent made clear its position that the former MidCoast Water employees should not receive any further increases to their superannuation rate which stood at 15.5%. The unions' view was that increases in the Superannuation Guarantee (SGC) should not be 'absorbed' by former MidCoast Water employees and that those employees should continue to enjoy a superannuation rate at 6% above SGC. Neither party was prepared to move on their position. In the end, the parties agreed to insert clause 33.1(a) into the 2019 Agreement. The insertion of this clause was a significant concession by the Respondent in negotiations. Additionally, the former MidCoast Water employees were given other significant benefits. … Industrial Relations Act 1996 (NSW) … 28. The first issue for the Commission to determine is whether the current application should be considered by the Commission pursuant to s10 or s17 of the IR Act. 29. The Respondent concedes that on its face s136(1)(b) could rely on s10 of the Act. However, if the Commission were to make the proposed Award it would in accordance with its terms vary the effect of the Local Government Award 2023 (394 IG 658) (the 2023 Award) and in particular clause 16(i) of the 2023 Award. 30. It would be a triumph of form over substance if such an exercise of power could avoid the provisions of s17(3)(c) of the IR Act by a drafting technique in making the proposed Award rather than varying the 2023 Award. This result should be avoided by the Commission. In deciding to make the proposed Award, the Respondent submits in the circumstances of this case, the Commission needs to be satisfied that the provisions of s17(3)(c) are met since the 2023 Award remains within its nominal term and deals with the issue of superannuation. 31. Subsection 17(3)(c) plainly mandates two conditions which the Commission must consider when an application is made to vary an award during its nominal term in the absence of consent. Firstly, that it would not be contrary to the public interest and secondly, there is a substantial reason to do so. Public Interest … 35. The proposed Award may undermine industry wide negotiations since the Applicants appearing to reserve to themselves the ability to seek other awards for individual Councils for some or all of the employees of such a Council not withstanding agreement on the 2023 Award. This puts at risk the benefits that industry wide negotiations have achieved and that have been recognised by this Commission … . This is not in the public interest. 36. The 2023 Award was made by the Commission in June 2023 and this Award was to apply for 3 years (see Clause 47(v)). The 2023 Award applies to the Respondent and its employees (Clause 47(i)). The 2023 Award sets wages and conditions for employees of the Respondent over the next three years. The 2023 Award recognises that in agreeing to increases in rates of pay for the term of this Award, the parties recognise that employers and employees have and shall continue to engage in enterprise bargaining (Clause 47(xi) Award). 37. In making this Application for the Proposed Award, the Union has failed to honour its commitment. This Commission has long recognised the need for parties to strictly observe agreements and undertakings given by parties. In these circumstances it is not in the public interest for the Commission to reward the Applicants by making the proposed Award. … 41. Further, the public interest is not severed by a small group of employees no matter what role they now perform with the Respondent enjoying a significant benefit when those that work alongside them do not have the benefit of an additional 6% superannuation payment. … No substantial reason to do so … 55. There was no agreement in 2019 or 2022 that SGC payments would not be absorbed. Even if that was agreed to in the past, the Respondent is entitled to have adopted a different position in 2019 or 2022 given clause 3.2 of the 2015 Agreement. … Wage Fixing Principles 75. In addition, whether s17 or s10 of the IR Act applies, the Commission must not only have regard for the statutory requirements relevant to the particular section under which the application is made, but must also have regard for any relevant principle or principles under the State Wage Fixing Principles in the State Wage Case 2022 [2022] NSWIRComm 1081. 76. In particular, this application is governed by Principle 10. Given the Union seeks a greater quantum of employer contributions than required by the Superannuation Guarantee (Administration) Act 1992 (Cth), the matter should be referred to a Full Bench for consideration as a special case, unless otherwise allocated by the Chief Commissioner. 77. On 14 June 2023 the parties to these proceedings were advised that the Chief Commissioner had determined that the application would remain allocated to Commissioner Muir. However, it is unclear as to whether the Chief Commissioner considered the Application in light of wage fixing principles and the Chief Commissioner may not have seen the proposed Award. The Commissioner needs to be satisfied that the Application is properly before the Commission. 78. Principle 10.3 provides that the Commission may make an award providing for a greater quantum of employer contributions required by the Superannuation Guarantee (Administration) Act 1992 (Cth) either: (a) by consent; or (b) in the absence of consent, by arbitration, provided the Commission is satisfied that there are particular factors warranting the awarding of different provisions. Such factors may include: (i) the wishes of the parties; (ii) the nature of the particular industry or enterprise; (iii) the history of the existing award provisions; (iv) relevant decisions of the Commission establishing superannuation principles; and (v) relevant statutory provisions. 79. The Applicants have failed to address any of the factors outlined in Principle 10.3 (b). 80. The Respondent submits that none of the factors above are applicable to this Application and as such the proposed Award should not be made on the basis that it sits outside the wage fixing principles. 81. In addition, Principle 10.4 mandates that prior to the making of an award under Principle 10.3 the Commission must be satisfied, on expert evidence, that the award to be made will not contain requirements that would result in an employer not meeting the requirements imposed by the Superannuation Guarantee (Administration) Act 1992 (Cth). 82. The Applicants have not led expert evidence and the Commission is precluded by operation of Principle 10.4 from making the proposed Award in the absence of expert evidence. Issues with the Proposed Award 83. There is no need for the proposed Award to contain a preamble. 84. The proposed Award seeks for the award to apply to former employees. Such a requirement is contrary to s10 and 12 of the IR Act. 85. The proposed Award has a retrospective operation back to the date the 2019 Agreement commenced and there is no basis for this pursuant to s15. 86. The proposed award contains a disputes resolution clause that is contingent on the continued existence of the 2022 Agreement. It would be preferable for the proposed Award to contain its own clause. 87. In respect to clause 6(b) this is inconsistent with s16(2) of the IR Act which provides that the nominal term of an award must not be less than 12 months nor more than three years. The proposed clause is inconsistent with the IR Act in that it is proposed that the Award remains in force until varied or rescinded." [Emphasis in original. Footnotes omitted.]
3. The respondent's submissions also referenced the extended history of enterprise agreements at MidCoast County Council. These submissions focused on the fact that these agreements expressly referenced that benefits within the agreements were "for the life of" each agreement.
4. The respondent's submission was that s 10 of the IR Act did not support the making of the proposed award, setting out why different conditions from those applicable generally would ordinarily not be fair and reasonable.
5. On their face, these arguments are rational. However, as the respondent has already agreed to provide materially better conditions for the relevant employees than it offers to its other employees, this argument cannot hold water. For this reason, the detail of this submission need not be set out.

Applicants' submissions in reply

1. In reply, the Unions were more expansive, submitting: "Introduction 1. These submissions reply to the three primary contentions in MidCoast's submissions, being the: a. novel idea that clause 16(i) of the Local Government Award 2023 applies to the relevant workers, and what is said to be the consequences of this; b. significance, or otherwise, of the 'state wage fixing principles'; c. contention that the merits of the case do not justify the Award being made. 2. Additionally, the miscellanea of complaints about the drafting of the proposed award are dealt with in conclusion. The LG Award 3. The majority of MidCoast's submissions proceed on the premise that cl. 16(i) of the LG Award applies to these employees, such that: a. the effect of the Award is to vary that clause; and b. thus the requirements of s. 17(3)(c) of the IR Act (i.e. that it is in the public interest and there is a substantive reason to do so) apply. 4. This is nonsense. Clause 16(i) of the LG Award deals with superannuation payments to be made to employees. This is the same matter dealt with by cl.33.1(a) in respect of these employees. Accordingly, per s.41(1) of the IR Act, cl.33.1(a), including the right it provides to have the 'question of absorbability' dealt with by the Commission, prevails over cl. 16(i). 5. In other words, the clause that MidCoast claims the Unions are seeking to 'vary': a. does not have any operation in respect of the relevant employees; and b. if the Award is made, will continue to have no relevant operation, such that neither its effect nor its terms could sensibly be said to be 'varied' in any way. … The legal effect of the State Wage Principles 33. The first question for consideration is what is the legal effect of the Wage Case 2022 orders at [25], which provide The Full Bench makes the following orders effective today: Pursuant to sub-s 51(1) of the Industrial Relations Act 1996, the Commission's Wage Fixing Principles are as set out in Annexure A to this decision which operate on and from today; and The Principles set out in Annexure A to this decision supersede the Wage Fixing Principles set out in Annexure A to the State Wage Case 2021 (2022) NSWIRComm 1014. 34. MidCoast seem to presume, without interrogation, that they operate as an absolute fetter on the Commission's jurisdiction under s. 10 to make awards as part of its fundamental dispute settlement function. … MidCoast's specific contentions and Principle 10 47. MidCoast at [77] suggest that the matter is not properly before the Commission because it is not being heard by a Full Bench as a special case. 48. Principle 10.1 provides that: 10.1 An application to make or to vary an award which...seeks a greater quantum of employer contributions than required by the Superannuation Guarantee (Administration) Act 1992 (Cth) ('the SGA Act') ...will be referred to a Full Bench for consideration as a special case, unless otherwise allocated by the Chief Commissioner. 49. This is really a procedural determination per s.162(1) than a statement of 'wage fixation principle'. While the default position is a Full Bench Special Case hearing, the Chief Commissioner retains a discretion to allocate the matter otherwise. 50. That is exactly what the Chief Commissioner has done. MidCoast took the point at the first directions hearing, and the matter was returned to the Chief Commission to consider, or reconsider, the question of allocation expressly in light of MidCoast's view of the wage fixation principles. The matter has been allocated to a single member to be dealt with as an ordinary dispute. The suggestion at [77] that something has miscarried appears to have no actual basis and is simply a continuing attempt to disrupt the orderly progress of the matter. … 69. As to the specific issues: a. in respect of [83], although a preamble is not necessary it is not uncommon, and is useful in explaining why awards dealing with one niche issue exist; b. [84] is not correct; the Award would only apply to current employees but would impose, separately, an obligation on MidCoast to make a payment to former employees, which is permissible; c. as to [85] retrospective operation is justified and permitted per s.15; as set out in Mr Mazarto's reply statement the delays relied on by MidCoast either baldly mischaracterize the 2019 bargaining process or elide its own conduct; d. [86] is a matter of preference and the Unions are agnostic as to whether the dispute resolution clause is incorporated in full or incorporated by reference; e. the Unions accept that 6 should refer to a nominal term of 3 years." [Emphasis in original.]
2. The Unions' submissions set out at length the history of enterprise agreements between the Unions and the MidCoast County Council. The substance of these was to establish the ongoing historical intention of the parties to set superannuation rates above the legal minimums.
3. For the reasons set out below at [51]-[58], the details of these submissions need not be set out.
4. The oral submissions of the parties did not materially alter or add to their written submissions.

How to proceed

1. The first question which the Commission must address concerns the opposing submissions as to the applicability of the Wage Fixing Principles (the Principles) and the extent to which they fetter or place boundaries around the Commission's powers to make awards.
2. In summary, the respondent's position was that Principles applied fully, and accordingly were a further reason why the Commission ought not make the award in the terms sought by the Unions.
3. In summary, the Unions' position was that the Principles were just that, principles, and should not be used as a means to prevent the Commission making an award in terms which the Commission considered to be otherwise fair and just.
4. The detailed submissions from the Unions as to the history of the Principles does not contribute substantially to answering the question, becasue the history does not add much to understanding the text of the Principles.
5. The Commission accepts that the Principles apply, and should guide the Commission in its consideration. The Principles were set by a Full Bench of the Commission through a process to which all parties regularly appearing before the Commission had an opportunity to contribute.
6. As will be apparent from the consideration set out below, the Commission has concluded that there is nothing in the Principles which would prevent the Commission making the award sought by the Unions. In summary, this is because the parties expressly agreed in both the 2019 EA and the 2022 EA that the Commission should arbitrate the question of the absorbability of superannuation increases required by the Superannuation Guarantee (Administration) Act 1992 (SGA Act).
7. The Commission addresses each of the points raised by the respondent below. Overall, the respondent's submissions as to the Principles strike the Commission as reneging on an express agreement with the Unions for the Commission to arbitrate the superannuation absorbability question.
8. On the question of whether a Full Bench should consider the questions now before a single member of the Commission, the Commission accepts the submissions of the Unions, in particular as set out at paragraphs 49 and 50 of the Unions' submissions in response: "49. … While the default position is a Full Bench Special Case hearing, the Chief Commissioner retains a discretion to allocate the matter otherwise. 50. That is exactly what the Chief Commissioner has done. …"
9. As to Principle 10.3, which concerns the making of employer contributions above that required by the SGA Act, the Commission accepts that the award sought is not made by consent. However, that Principle continues and provides that in the absence of consent such an award may be made by arbitration if the Commission is satisfied there are particular factors warranting the award of a different provision, and that such factors may include the wishes of the parties.
10. It is abundantly clear to the Commission that the wishes of the parties, as expressed in two enterprise agreements, was that the Commission should arbitrate the outcome as to absorbability.
11. Accordingly, the Commission does not consider Principle 10.3 provides any impediment to the Commission arbitrating the merits of the question.
12. Principle 10.4 requires that prior to the making of an award pursuant Principle 10.3, the Commission must first be satisfied, on expert evidence, that the proposed award will not set requirements that would result in an employer not meeting the requirements imposed by the SGA Act.
13. It is clear, that the respondent is already paying a superannuation contribution above that required by the SGA Act and proposes to continue to do so. What the application seeks is to increase to the quantum of the above legal minimum rate to be paid.
14. In such circumstances, it was incumbent on the respondent to show that there was any risk of it being non-compliant should the award as sought be made, if it sought to rely on this Principle.
15. The Commission is comfortably satisfied there is no basis to consider that the award would place the respondent in a position of breaching the SGA Act, and accordingly determines to dispense with the requirements of Principle 10.4.
16. The Commission next turns to consider the respondent's submissions that, as a matter of law, what is sought is a variation to the Local Government (State) Award 2023 (LG Award), and thus the requirements of s 17 of the IR Act must be met in order for the award to be made.
17. The Unions' position was that as the LG Award does not apply to the relevant employees in respect of superannuation, because it has been ousted in its entirety by the terms of the relevant enterprise agreements.
18. The Commission considers that the submissions of the parties were inadequate to be persuaded that the award sought does not constitute a variation to the LG Award. In summary, this is because it is expressly set out in both the 2019 EA and the 2022 EA that they are to be read in conjunction with the LG Award. The agreements are to apply to the extent of any inconsistency, but it is clear the LG Award still applies to the relevant employees.
19. It is not necessary for the Commission to determine this question, as the Commission is comfortably satisfied that any requirement of s 17 of the IR Act as to variation is satisfactorily complied with in the circumstances.
20. The answer to the respondent's submissions as to public interest and there being a substantial reason to make the amendment is the same as the answer which addressed the Principles. The respondent agreed that the Commission should arbitrate the issue, and submissions now by the respondent contrary to that position should not be accepted as they amount to a repudiation of the bargain they have entered twice.
21. The Commission is comfortably satisfied that it would not be contrary to the public interest, should the merits of the Unions' position be accepted. Further, there is a substantial reason to do so, subject to the same condition, because the parties agreed that the Commission should arbitrate the question of absorbability.

Merits of the award as sought

1. The Commission now turns to consider the submissions of the parties as to the history of enterprise agreements covering the relevant employees, and as to the technical wording of those agreements.
2. The first of these issues largely flows from the submissions of the Unions. Those submissions amount to a proposition that an improvement in working conditions obtained during negotiations for an enterprise agreement should, as a matter of principle, flow through to any future enterprise agreement. This submission was bolstered by submissions that the particular employment benefits, the rate of superannuation, was achieved through trade-offs against other conditions in earlier enterprise agreements.
3. These submissions are of course unexceptional from the perspective of the Unions, and indeed industrial associations representing employees generally before the Commission.
4. The difficulty with these submissions is that they are fundamentally contrary to the basis on which enterprise agreements are negotiated, and indeed contrary to the structure of such agreements set out in the IR Act.
5. An enterprise agreement binds the parties for its nominal term and following that nominal term until replaced by another agreement, or formally terminated. What the parties to the replacement enterprise agreement agree as their bargain is unconstrained, other than by minimum standards of employment set by industrial laws.
6. This principle operates without discrimination against any party. One enterprise agreement may agree the trading away of various allowances against a wage increase. Such a term of an enterprise agreement would not, and indeed could not, prevent a union from seeking the reinstitution of the same allowances in a future enterprise agreement.
7. Submissions that an earlier enterprise agreement represented that superannuation at a margin above the SGA Act rate would continue in perpetuity are similarly misconstrued. Such a term applies for the life of that enterprise agreement. Whether such a term applies during any replacement enterprise agreement is a matter for the terms of that replacement enterprise agreement.
8. The effect of this consideration is that neither party can draw any comfort from what is set out in earlier agreements. The parties were aware of the contents of those earlier agreements but chose to express their bargain for the 2019 EA and the 2022 EA in the terms set out in those agreements.
9. In making an award, the Commission is required, pursuant to s 10 of the IR Act to set fair and reasonable conditions. Bluntly, in the absence of the history of this matter, and in particular of the way in which it has come before the Commission to be determined, it would be difficult to see that a claim by a small group of employees for significantly higher than usual superannuation payments, particularly a group defined by their work history rather than their current work duties, would be fair or reasonable.
10. The Unions advanced reasons why the fair and reasonable outcome was a superannuation rate fixed at 6.0% above the SGC rate. These are set out above at [52]-[58], and below from [63]-[65].
11. The respondent did not specially address a fixed rate of 15.5% being fair and reasonable, albeit this is not essential to their case. Both enterprise agreements provide a basis for this rate outside the requirements of s 10 of the IR Act.
12. The respondent's opposition to the rate, as not being fair and reasonable because it sets a different rate from the LG Award applying to other employees of the Council, is undermined by the Council having entered both the 2109 EA and 2022 EA. Both of these set the rate for superannuation above other employees of the Council.
13. The Union's submissions pointed to accounting rules, set by IPART, applying to the water and sewerage operations, now a component part of the services of the Council. They submitted that because those rules allowed the Council to draw dividends from those operations, this demonstrated the capacity of the Council to make the payments sought by the Unions.
14. Because the relevant operations form part of the larger Council, and any capacity to pay is a matter that can only be concerned with the financial standing of the Council as a whole. Consideration of the financial state of the water and sewerage works on a stand-alone basis is now hypothetical.
15. The Commission observes that the balance sheet relied on by the Unions clearly demonstrates that, on a combined basis, the water and sewerage works, separately from the rest of Council, run at approximately breakeven over approximately $90M of income and expenditure.
16. The Council's submission that funding the superannuation payments at the rate sought would take funds from other good purposes of the Council is largely self-serving. The annual amount in question is approximately $190,000 for the year ended 30 June 2023. This is immaterial in the context of a budgeted wages and salaries expenditure by the Council of approximately $72M for the same period. Even in the context of a Council wide superannuation expenditure in the same period of approximately $9M, this is less than a 2.4% increase.
17. The Council submission that it would have to find the funds, including perhaps any backpay, is completely unpersuasive in the context of a respondent who has been aware since at least 2019 that the relevant sums are in dispute, and may at some point be ordered to be paid. It is clear from both the profit and loss statement of the Council, and its projected balance sheet, that the sum in question is so small as to be immaterial to its financial position.
18. During the proceedings the Commission asked each party to address the gender pay equity object set out in s 3(f) of the IR Act. The question arose because it appeared obvious that the relevant employees were a group which was predominantly men and were already paid superannuation at a higher rate than the rest of the Council's employees.
19. The Annual Report for the Council for the year ended 30 June 2023 reports that 60% of the Council's workforce are women.
20. Each party denied that the circumstances were such that the equal remuneration of men and women was an issue which should be a factor in the Commission's decision.
21. The Unions submitted that the way in which the Commission's question was framed improperly sought to restrain or reduce earnings of men, whereas the proper understanding of the obligation on the Commission in respect of equal remuneration should be focused on remedial or corrective increases to women whose work has been underpaid or undervalued.
22. The Commission accepts the submissions that gender is not a relevant factor in determining whether to make the award.

Outcome

1. None of the submissions made by the Unions or the Council were especially persuasive.
2. The parties engaged in enterprise bargaining discussions, agreed on everything bar superannuation, and then came to the Commission saying that in the case of an instrument which was entirely the province of the parties, the Commission should determine entirely in their favour. Each party sought to avoid compromise in an instrument which is intended to be that of the parties in the hope that they would find some reason, not articulated during their enterprise bargaining negotiations, which would fall in their favour.
3. The Commission has concluded that the industrially just and fair outcome, given that neither party has advanced any rational reason why its position is so persuasive as compared with the other party's position, is that the claim should be granted to the level of 50% absorption.
4. The Commission concludes that, apart from the rate at which superannuation should be absorbed into increases to the SGA Act rate, the award should be as sought by the Unions, save for the term which should be 3 years.
5. The reasons for the award otherwise being as sought by the Unions is, as for other matters in this Decision, the bargain struck by the parties as to the way in which the rate for superannuation to be determined. The parties agreed the Commission would determine it, and it is implicit in this that such a decision would apply from the time the SGA Act raised the superannuation rate above 9.5%.
6. It is clear to the Commission that the dispute giving rise to the award was the one which led to the decision of the Commission in Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081.
7. It is also clear to the Commission that the coverage clause of the draft award is exactly the same as those employees and former employees covered by the 2022 EA.
8. The Commission has determined to direct the parties to agree the terms of an award, to the extent the draft award filed by the Unions needs to be amended, giving effect to this Decision.
9. Should the parties not agree such terms within 28 days, the applicants and respondent should file their respective terms for such an award and advise the Registry whether they require the matter to be listed for hearing or whether it should be determined on the papers.

Orders

1. The applicants and respondent are directed to consult on the terms of an award giving effect to this Decision. C Muir Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2024