Local Government Engineers' Association v Central Coast Council; ; &; ; New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Central Coast Council [2025] NSWIRComm 1048

(1) Paul Marzato, an officer of the LGEA;

(2) Mr Luke Hutchison, an officer of the USU; and

(3) Mr Darrylen Law, the Unit Manager, People and Culture for the respondent.

1. There was a subsequent affidavit filed of Mr Paul Bell, an officer of the Local Government Association, attesting to the consent of each of the parties to the terms of settlement.
2. The parties, with the assistance of the Commission, had reached agreement in relation to a new salary system which comprised 19 distinct salary grades, with each grade having 6 steps. In addition, the parties by consent reached agreement on the terms of a remuneration and job evaluation protocol that applied to the new salary structure and in particular how employees of the respondent moved from the old salary system to the new system (the "Protocol").
3. The parties were initially at odds with how to ensure enforcement of the new salary system and the Protocol, with the LGEA and the USU seeking to have an award made reflecting the outcome. Ultimately, the parties agreed to have an order in terms of the Protocol made pursuant to s 174(b) of the Act.
4. Prior to dealing with the application for the s 174(b) order, I will make an order joining the two matters because of the identical nature of the disputes and the settlement that was reached.
5. Turning to the second order, in approaching this application in relation to the making of an order pursuant s 174(b), I note that this was considered by the Commission as currently constituted in New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039 at [8]- [12]:

[8] The terms of s 174 makes it clear that the jurisdiction under s 174 is enlivened when there has been a settlement reached by way of conciliation.

[9] As to what is envisaged by conciliation in the context of s 174, Glynn J in Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297 at [74], held that it means conciliation undertaken by a member of the Commission.

[10] Once the Commission has jurisdiction under section 174, the use of the term 'may' provides that issuing of such an order is a matter of discretion.

[11] Turning to the matters relevant to the exercise of the discretion under s 174 of the Act, Staff J in McLennan & Anor v Infinity Constructions Pty Limited & Ors [2007] NSWIRComm 10 set these out in the following passage:

"20 The provisions of s 174 of the Act have been considered in the following decisions: Fox v GIO, Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297 and Best v Barlings Beach Community Pty Limited and Ors. The principles which emerged from these decisions are that s 174 limits the making of orders in terms agreed by the parties in settlement of the matter and no more (Schmidt J in Best) and s 174 provides a discretion which enables the Court to give consideration to the "validity or illegality" of any settlement agreement and to consider any unconscionable conduct on the part of one or other of the parties (see Walton J, Vice-President in Fox)."

[12] Thus, the matters that I had to satisfy myself of prior to making the Order were:

(1) the settlement of the dispute was reached via conciliation conducted by the Commission.

(2) the terms of settlement do not constitute an illegality or invalidity.

(3) the settlement was not reached, in part, nor in whole, as a result of unconscionable conduct of either or both of the parties.

1. I intend to follow the same approach in the current application.
2. As seen from the above, the terms of settlement reached between the parties have been reached as a result of a process of conciliation conducted by the Commission and accordingly the first matter is satisfied.
3. Secondly, there is nothing in the terms of the settlement nor its application that would constitute an illegality nor invalidity and therefore the second matter is satisfied.
4. The terms of settlement have been reached through a long process of negotiation and conciliation and there is no evidence the unconscionable conduct by either party has resulted in the terms of settlement. For this reason, I find that the third matter is satisfied and accordingly it is appropriate to make the order pursuant to s 174(b) as sought by the parties.
5. For the reasons set above I make the following orders:

(1) matters 2024/00114032 and 2024/00082585 be joined;

(2) an order pursuant to s 174(b) of the Industrial Relations Act 1996 to give effect to the terms of settlement reached between the parties in relation to the disputes as detailed in "Attachment 1" to this decision.

(a) All eligible employees will be moved to a Grade and the next highest Step in the new Salary Structure, if a higher Step is available. The implementation of the new salary structure, which results in the potential salary movement (rounding up to the next highest Step), will be effective from the beginning of the pay period commencing on 3 March 2025.

Any outstanding transitional job evaluations which result in an employee's position being allocated to a higher grade (e.g. placed into Grade 7 but evaluation results in a Grade 8) and the next highest Step, will also be made effective from the beginning of the pay period commencing on 3 March 2025.

Where the outstanding transitional job evaluation results in the placement of the position at a grade lower than the initial placement into the new salary system (e.g. placed into Grade 8 but evaluation results in a Grade 7), the employee will be placed into the next highest step if a higher step is available. If there is no higher step available, they will maintain the higher transitional salary step and be deemed a Current Occupant Only (COO). Employees who are COOs in the salary structure will continue to receive increases in salary consistent with variations in the Local Government (State) Award (the Award).

(b) For the 2024/2025 salary progression appraisal year only, a transitional salary progression assessment comprising the current performance appraisal or an alternate skills-based assessment will apply. The selection of either process will be position based and will be determined by the relevant employees in consultation with the relevant supervisor and/or manager.

(c) Those employees who otherwise meet the requirements for assessment but do not have "in-flight" measures will have these developed in the period leading up to the annual assessment. The Council will support this process to ensure consistent application, and any skills matrix developed will provide an appropriate foundation for future work on the salary progression process.

(d) The development process noted above may include the preparation of a skills matrix for selected positions. This matrix may be used as the basis for a step of progression effective 1 July 2025 and as the foundation for further skills-based progression for positions where this process is the selected method of annual assessment.

(e) From 1 July 2025 onwards, new skills and/or performance criteria, established with the new salary system, will be used for progression effective from the beginning of the first full pay period commencing on or after 1 July 2025. The process will be agreed upon by the parties to this dispute no later than 31 August 2025.

(f) The Remuneration and Job Evaluation Protocol (the Protocol) outlines how the parties agree on the operation of the new salary system.

(2) Nothing in these orders limits the requirement for the Respondent to consult and achieve agreement with the Union parties, consistent with the Protocol provisions, prior to making any changes or alterations at any time to any aspect of the Protocol (Annexure B) or the overall salary system, which includes the salary table, job evaluation processes, and salary progression model (based on the use and acquisition of skills). This commitment of the respondent is also outlined in Section 11.2 of the Protocol.

(3) The Applicant parties agree, subject to Orders 1 and 2, to make no further claims in respect of the issues in dispute in these proceedings for as long as the Respondent complies with these Orders or until otherwise ordered.

(4) Proceedings related to 2024/00082585 and 2024/00114032 are discontinued.