The Mid-Western Regional Council ("Council") has applied for approval of an enterprise agreement to be known as the Mid-Western Regional Council (Supported Employees) Enterprise Agreement 2023 ("Agreement"). The application is brought under s 34 of the Industrial Relations Act 1996 ("Act").
The Council's application identified the respondent as being the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"). Clause 1.3 of the Agreement identifies the parties as being the Council and the USU. The Agreement was signed on behalf of both the Council and the USU on 24 November 2023.
Part D of the Agreement provides that the terms of the Local Government (State) Award 2023 ("Award") are incorporated into the Agreement, other than to the extent that the Agreement is inconsistent with those terms. That is, the Agreement is said to prevail over the terms of the Award to the extent of any inconsistency.
I listed the matter for mention on 19 January 2024. Philip Amos of Practical Workplace Solutions appeared as agent for the Council. There was no appearance by the USU.
During the mention I noted the terms of cl 1.3 and Pt D of the Agreement. I observed that cl 3(ii) of the Award provides that in addition to the USU, the Local Government Engineers' Association of New South Wales, the Development and Environmental Professionals' Association and the New South Wales Nurses and Midwives' Association are identified as representing employees covered by the Award. In response to a question from me, Mr Amos confirmed that only the USU represents the employees to whom the Agreement applies.
The mention concluded on the basis that the Council would file and serve written submissions in support of its application, and that after they were received by the Commission the application would be determined "on the papers".
This outcome was communicated by the Industrial Registry to the Council and the USU, by way of email, on 19 January 2024.
The Council's submissions were received later on 19 January 2024. I am aware that they were provided to the USU by way of email on the same day.
Section 35 of the Act relevantly provides:
35 Approval of enterprise agreement by Commission
(1) The Commission is to approve each enterprise agreement lodged for approval, but only if the Commission is satisfied that -
(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and
(b) in the case of an agreement that covers employees to whom State awards would otherwise apply - the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and
…
(c) the parties understand the effect of the agreement, and
(d) the parties did not enter the agreement under duress.
(2) This subsection applies to an enterprise agreement that applies to some but not all the employees of an employer, unless the employees to whom it applies comprise a distinct geographic, operational or organisational unit. The Commission is not to approve such an enterprise agreement if it is satisfied that -
(a) the agreement fails to cover employees who would reasonably be expected to be covered, given the nature of the work performed under the agreement and the organisational and operational relationships between the employees covered by the agreement and the remainder of the employees, and
(b) it is unfair not to cover the employees excluded from the agreement.
(3) The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.
Rule 6.9 of the Industrial Relations Commission Rules 2022 relevantly provides:
6.9 Comparison and compliance statement
(1) An application for approval of an enterprise agreement…must be accompanied by an affidavit.
(2) The affidavit must -
(a) identify -
(i) the awards…,if any, over which the agreement will prevail, and
(ii) other enterprise agreements…that will be rescinded or replaced if the agreement is approved, and
(b) compare the conditions of employment…under the agreement with the comparative conditions of employment.
(3) The affidavit must also set out, briefly but specifically, the basis on which the following is contended -
(a) the conditions of employment or engagement under the agreement, if compared with the comparative conditions of employment, do not, considered as a whole, result in a net detriment to the employees covered by the agreement,
(b) the agreement complies with relevant statutory requirements, including in the Anti-Discrimination Act 1977,
(c) the parties understand the effect of the agreement,
(d) the parties did not enter into the agreement under duress,
(e) the agreement complies with the principles set by the Commission under the Act, section 33 or any departure from the principles does not prejudice the interests of the parties to the agreement.
(4) If the agreement does not cover all of the employees of the employers to whom the agreement relates, the affidavit must also state the basis on which it is contended the Commission is not prevented from approving the agreement under the Act, section 35(2)…
The Council's application is supported by an affidavit of Mr Amos, sworn on 20 December 2023. In his affidavit, Mr Amos deposes as follows:
1. the Agreement only covers employees of the Council who are eligible for or in receipt of a Disability Support Pension and/or an employee defined as an NDIS participant employed by a "prescribed service" or "eligible organisation" as defined by the Disability Services Act 1986 (Cth);
2. the Agreement will rescind the Mid-Western Regional Council (Supported Employees) Enterprise Agreement 2015;
3. the Award is incorporated into the Agreement, save that where there is an inconsistency between the Agreement and the Award the former will prevail;
4. the Agreement complies with the relevant statutory requirements, including the Anti-Discrimination Act 1977;
5. the Agreement does not, on balance, provide a net detriment to employees to whom it applies when compared with the aggregate package of conditions which would otherwise apply under the Award. Annexed to the affidavit is a document comparing the conditions under the Agreement with those that would otherwise apply under the Award;
6. the Agreement was made following negotiation between the parties. During the course of the negotiations, details of the proposed agreement were discussed with the employees to whom it would apply, and their parents and/or guardians. The Council has undertaken, and continues to undertake, an extensive reinforcement program with the employees to ensure that they understand the content of the Agreement and the impact that it will have on their employment;
7. the parties have had the opportunity to consider the content of the Agreement and understand its effect;
8. the parties did not enter into the Agreement under duress;
9. the Agreement complies with the principles set by the Commission pursuant to s 33 of the Act; and
10. with respect to s 35(2) of the Act, the terms of the Agreement are specific to the employees referred to at [10(1)] above, including:
1. a wage assessment process based on the skills held by, and the productivity outcomes of, the employee with a disability compared to an employee without a disability performing the same role; and
2. terms related to the special needs and employment requirements of an employee with a disability.
The Council's written submissions provided further context to the evidence of Mr Amos. In particular, they outlined how the terms of the Agreement operate so as to assess an employee's skills against the requirements of their role and place them at the appropriate wage level for that role.
The Council's application is accompanied by the necessary Statement of Particulars.
The Agreement provides that the dispute resolution provision the Award will apply to resolve any disagreements, disputes, grievances or occupational health and safety concerns: cl 6.1.1. The Agreement has a nominal term of three years commencing from the date on which it is approved: cl 1.4.
I am satisfied on the material presented to the Commission that the Agreement complies with all necessary statutory tests and the principles set by the Commission pursuant to s 33 of the Act in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. I am further satisfied on the evidence that nothing in s 35(2) of the Act precludes approval of the Agreement.
[2]
Order
The Mid-Western Regional Council (Supported Employees) Enterprise Agreement 2023 is approved in accordance with s 35 of the Industrial Relations Act 1996. The Agreement will commence from 23 January 2024 for a term of three years.
Damian Sloan
Commissioner
[3]
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Decision last updated: 23 January 2024