New South Wales Institute of Sport Enterprise Agreement 2023 - 2024 [2023] NSWIRComm 1030

The Parties to, and the Progress of, this Application

1. Pursuant to s 31 of the IR Act an enterprise agreement may be made between the employer(s) of the employees for who it is made and either one or more industrial organisations representing any of those employees, or with the employees themselves.
2. Clause 4.1 of the Agreement provides: The parties to this Agreement are the NSWIS Contracting Entity on the first part, and NSWIS Staff on the second part as represented by the NSWIS Consultative Committee listed below in the table, and future employees employed in the operations of NSWIS.
3. A table follows with seven named members of the Consultative Committee, including Mr Wayne Earl, Manager People and Culture, who appeared at the hearing on behalf of the Applicant, and Mr Chris Yeomans, Senior Coordinator Talent, and chair of the Consultative Committee, who appeared at the hearing on behalf of the Respondents, being 92 named persons employed in the operations of NSWIS.
4. As the employees are parties to the Agreement, not an industrial organisation representing those employees, the provisions of s 36 of the IR Act apply, with the result that, as will be revealed below, additional steps are required to be taken to obtain approval of the Agreement.
5. The term 'NSWIS Contracting Entity' is defined in cl 2 of the Agreement as meaning the "Industrial Relations Secretary on behalf of Institute of Sport Staff Agency."
6. 'NSWIS Staff" is not defined in the Agreement per se, however 'NSWIS' is defined in cl 2 to mean "the New South Wales Institute of Sport and or Institute of Sport Agency'. 'Staff' is defined in cl 2 as follows: Staff means all employees employed in Roles in classifications graded from Grade 1 through to Grade 4 (inclusive) set out in Schedule 1of this Agreement, including all Full-Time Employees, Part-Time Employees and Casual Employees who are employed in those Roles, and the term Staff Member has a corresponding meaning. [The capitalised terms used in the definition are also defined in cl 2]
7. Clause 3 of the Agreement reads as follows: 3. Application/Coverage/Scope 3.1 This Agreement applies to all Staff Members. 3.2 The Staff Members to whom this Agreement applies are entitled to the conditions of employment as set out in this Agreement. 3.3 Where conditions of employment are not stated in this Agreement the terms and conditions of the GSE Act, GSE Regulation, GSE Rules and the Crown Employees Award will apply to the extent that there is no inconsistency with the terms and conditions of this Agreement.
8. The various terms referred to cl 3.3 are defined in cl 2 as follows: Crown Employees Award means the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 as amended from time to time. … GSE Act means the Government Sector Employment Act 2013 (NSW) as amended or replaced from time to time. GSE Regulation means the Government Sector Employment Regulation 2014 (NSW) as amended or replaced from time to time. GSE Rules means the Government Sector Employment Rules 2014 (NSW) as amended or replaced from time to time.
9. Pursuant to s 32(1) of the IR Act an enterprise agreement does not have any effect unless it is approved by the Commission under Part 2 of the IR Act. Following approval, the enterprise agreement is entered into a register kept by the Industrial Registrar and published on the NSW industrial relations website: s 45 of the IR Act.
10. Section 34 provides for the making of an application for approval: 34 Application for approval of enterprise agreement (1) Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission. (2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented - (a) any party to the agreement, (b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement, (c) a State peak council (but only with leave of the Commission), (d) the President of the Anti-Discrimination Board (but only with leave of the Commission). (3) The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case.
11. The initial application for approval of the Agreement was filed on 30 November 2022, supported by an affidavit of Mr Earl sworn on 29 November 2022. The named applicant was the 'New South Wales Institute of Sport Staff Agency.' However, filed with the application was an earlier version of the Agreement which named the employer party in cl 4.1 as being 'NSWIS', which was defined as "the New South Wales Institute of Sport".
12. At a directions hearing held on 14 December 2022, I discussed this discrepancy and other potential deficiencies in the evidence filed by the Applicant, with Mr Earl. Following those discussions, I granted leave to the Applicant to amend the application and to file and serve such amended application by 9 January 2023. I also directed the Applicant to file and serve any further affidavits in support of the application by 9 January 2023 and set the matter down for hearing on 19 January 2023.
13. On 30 December 2022 the Applicant filed an amended version of the Agreement, which identified the employer party to be the 'NSWIS Staff Agency on behalf of the NSW Industrial Relations Secretary', together with an affidavit in support of the application for approval sworn by Mr Earl on 30 December 2022. The Applicant failed to file and serve an amended application by 9 January 2023.
14. I called the matter on for hearing on 19 January 2023. Mr Earl appeared for the Applicant and Mr Yeomans appeared on behalf of the Respondent. On that day I admitted Mr Earl's affidavit sworn on 30 December 2022 into evidence and elicited additional oral evidence from both Mr Earl and Mr Yeomans.
15. Due to ongoing issues with the Agreement, the evidence led in support of it and the fact that the Industrial Registrar had not completed her report as required by s 36(5) of the IR Act (although I had been provided with a draft), I stood the matter over for further hearing on 3 February 2023 and directed the Applicant to file and serve on Unions NSW (being the State peak council) and the Consultative Committee of the NSWIS, an amended application by 23 January 2023.
16. On 20 January 2023 the Applicant filed an amended application for approval naming the applicant as the "New South Wales Institute of Sport Staff Agency on behalf of the NSW Industrial Relations Secretary".
17. On or about 2 February 2023 I became aware that the Industrial Registrar would be shortly finalising her report as required by s 36(5) of the IR Act. In the circumstances I adjourned the hearing scheduled for the following day, to Tuesday, 7 February 2023 at 2pm, to allow the parties time to consider the Registrar's report. A copy of the Registrar's report was provided to the parties on 3 February 2023. As the report raised a number of questions and issues in respect of the Agreement, I also made the following directions in chambers: 1. Leave is granted to the parties to file any additional material upon which they would like to rely in support of the application for approval of the enterprise agreement, by email, by no later than 10am on Tuesday 7 February 2022. 2. The applicant is directed to file and serve, by email, by no later than 10am on Tuesday 7 February 2022, a copy of the NSW Institute of Sport Enterprise Agreement 2020 - 2022, together with either a document indicating the changes made to that agreement in the proposed new enterprise agreement, or a marked-up version of the new enterprise agreement.
18. On 7 February 2023 the Applicant submitted to the Commission a further amended application naming the NSW Industrial Relations Secretary on behalf of the Institute of Sport Staff Agency as the Applicant and to which was annexed an amended version of the Agreement, which also identified the NSW Industrial Relations Secretary on behalf of the Institute of Sport Staff Agency as the employer.
19. Due to the number and nature of the proposed changes to the Agreement from the version originally filed on 30 November 2022, and the mandatory stipulation in s 36(4) of the IR Act requiring an enterprise agreement to be approved in a secret ballot by not less than 65% of the employees who are covered by the agreement, I made the following directions in chambers on 7 February 2023: 1. The resumed hearing on 7 February 2023 is vacated. 2. The applicant is directed to file and serve on the Chair of the NSW Institute of Sport Consultative Committee, a Further Amended Application for Approval of Enterprise Agreement attaching a copy of the Enterprise Agreement for which approval is sought, by no later than 17 February 2023. 3. The applicant is granted leave to file and serve further evidence in support of the application, including evidence of the secret ballot required by s 36(4) of the Industrial Relations Act 1996, by no later than 10 March 2023. 4. The matter is listed for a resumed hearing on 14 March 2023 at 2pm. 5. Liberty to apply to have the timetable varied.
20. On 20 February 2023 the Applicant sought a variation to the above timetable which I granted in the following terms: 1. The applicant is directed to file and serve on the Chair of the NSW Institute of Sport Consultative Committee, a Further Amended Application for Approval of Enterprise Agreement attaching a copy of the Enterprise Agreement for which approval is sought, by no later than 24 February 2023. 2. The applicant is granted leave to file and serve further evidence in support of the application, including evidence of the secret ballot required by s 36(4) of the Industrial Relations Act 1996, by no later than 17 March 2023. 3. The listing on 14 March 2023 is vacated and the matter is relisted for further hearing on 22 March 2023 at 2.00pm in person.
21. The Applicant duly filed and served further evidence on 17 March 2023, being another affidavit of Mr Earl, sworn on 16 March 2023. The Applicant also provided the Commission with a wholly revised version of the Agreement, in final form and in mark-up (showing the changes made from the previously filed version), and a document identified as a 'Salary Comparison Spreadsheet'.
22. On 21 March 2023 the Applicant belatedly filed and served a further amended application for approval of enterprise agreement which attached a copy of the Agreement for which approval was sought. On 22 March 2023, following my request, a marked-up version of the Agreement was provided, showing how the Agreement differed from the NSW Institute of Sport Enterprise Agreement 2020 - 2022.
23. At the resumed hearing on 22 March 2023 Mr Earl again appeared on behalf of the Applicant and Mr Yeomans on behalf of the Respondents. I raised with both gentleman some issues with the material submitted including some typographical errors in the application for approval and in the Agreement; an apparent ambiguity in the Agreement as to whether superannuation is to be payable on allowances paid for temporary assignments to higher non-executive roles; and that the Agreement was apparently signed by Mr Yeomans on behalf of the Respondents before the ballot approving the agreement had been held. In the circumstances and with the consent of both representatives I made the following directions: 1. Direct the applicant to file and serve an amended application for approval annexing the version of the enterprise agreement for which approval is sought by 4pm on 28 March 2023. 2. Direct the parties to file and serve any further affidavits in support of the application by 4pm on 28 March 2023. 3. Upon receipt of the documents referred to in Orders 1 and 2 I will either reserve my decision or list the matter for further hearing. 4. Grant the parties liberty to apply to have the matter listed at short notice.
24. On 28 March 2023 the following documents were filed: 1. Application for Approval of Enterprise Agreement with Statement of Particulars dated 28 March 2023 and naming the NSW Industrial Relations Secretary on behalf of the Institute of Sport Staff Agency as the Applicant; 2. a version of the Agreement dated 28 March 2023 and signed by Professor Kevin Thompson, the Chief Executive Officer on behalf of the employer and by Chris Yeomans, Chair of the NSWIS Consultative Committee on behalf of the Staff of NSWIS; 3. a marked-up version of the Agreement showing the amendments made from the version that had been filed on 17 March 2023; 4. an affidavit of Mr Earl sworn 28 March 2022, with four annexures; 5. an affidavit of Christopher Yeomans sworn on 27 March 2023.
25. Having received the above documents and as no party sought to have the matter relisted, on 31 March 2023 I reserved my decision.
26. The evidence I have received and considered on this application consists of: 1. the Agreement dated 28 March 2023 (Exhibit C); 2. the marked-up version of the Agreement showing changes from the version filed on 17 March 2023 (Exhibit D); 3. the marked-up version the Agreement comparing the version filed on 17 March 2023 with the NSW Institute of Sport Enterprise Agreement 2020 - 2022 (Exhibit E); 4. the affidavit of Mr Earl sworn 28 March 2022, with its four annexures (Exhibit F); 5. the affidavit of Christopher Yeomans sworn on 27 March 2023 (Exhibit G); and 6. the Notice to Registrar pursuant to s 36 of the IR Act signed by Professor Kevin Thompson, Chief Executive Officer of the NSWIS dated 8 November 2022 (Exhibit H).
27. For clarity I note that Exhibit A was Mr Earl's affidavit of 30 December 2022 which was wholly replaced by Exhibit F and Exhibit B was the version of the Agreement filed on 30 December 2022, which was wholly replaced by Exhibit C.
28. The above account of the progress of the present application is no doubt as tedious to read, as it was to write. While both Mr Earl and Mr Yeomans were very pleasant and respectful gentlemen who readily took on board my suggestions and generally complied with my directions, it is unfortunate that insufficient attention was paid to the form and content of the Agreement and the requirements of Part 2 of the IR Act, the Industrial Relations Commission Rules 2022 and the Principles for Approval of Enterprise Agreements (as to which see further below), before the application for approval was filed. Section 34(3) of the IR Act stipulates that the Commission "is to deal with" an application for approval within 28 days, "unless it requires additional time to do so because of the special circumstances of the case." While the application was listed for directions within a week of it being filed, due to errors in the Agreement and deficiencies in the material filed in support, approval of the Agreement has taken over four months. While I have been assured that the pay increase effected by the Agreement has not been held up by the delay, parties seeking approval of an Enterprise Agreement must pay due regard to the various requirements for approval prior to filing an application, in order that the Commission may attend to its task with alacrity.

The Applicant

1. In respect of the named applicant, there is no prescription in the IR Act as to who may apply for approval of an enterprise agreement.
2. Section 4(1) of the Institute of Sport Act 1995 (NSW) provides: There is constituted by this Act a body corporate with the corporate name of the New South Wales Institute of Sport.
3. Section 17A of the Institute of Sport Act provides as follows: Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Institute to exercise its functions. Note - Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Institute. Section 47A of the Constitution Act 1902 precludes the Institute from employing staff.
4. Section 20 of the Government Sector Employment Act 2013 (GSE Act) provides: The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. Note - See section 47A of the Constitution Act 1902.
5. Section 22 of the GSE Act provides: (1) Public Service employees are employed in - (a) Departments (listed in Part 1 of Schedule 1), or (b) Public Service executive agencies related to Departments (listed in Part 2 of Schedule 1), or (c) separate Public Service agencies (listed in Part 3 of Schedule 1). (2) A Department or other Public Service agency may comprise such branches or other groups of employees as the Secretary of the Department or the head of the other agency determines from time to time. (3) Part 7 of the Constitution Act 1902 authorises the amendment of Schedule 1 by an administrative arrangements order under that Part. Any such order may also amend Schedule 1 to specify, change or remove the Department to which a Public Service agency is related. Note - An administrative arrangements order may create, abolish or change the name of Departments and other Public Service agencies and transfer employees between agencies.
6. The 'Institute of Sport Staff Agency' (not the 'New South Wales Institute of Sport Staff Agency') is listed in Part 2 of Schedule 1 of the GSE Act as a 'Public Service executive agency' and consequently it is a 'Public Service agency' as defined in s 3 of the GSE Act. The head of the agency is identified as the 'Chief Executive Officer of the New South Wales Institute of Sport'.
7. Section 31 of the GSE Act provides as follows: (1) The head of a Public Service agency (other than a Department) may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the employees of the agency (other than Public Service senior executives of an agency that is related to a Department). (2) The employer functions of the Government are all the functions of an employer in respect of employees, including (without limitation) the power to employ persons, to assign their roles and to terminate their employment. Note - The Secretary of the relevant Department exercises employer functions in relation to Public Service senior executives of an agency that is related to the Department. Division 6 confers on the Industrial Relations Secretary employer functions relating to the determination of the conditions of employment of, and other industrial matters relating to, Public Service employees.
8. Section 50 of the GSE Act provides as follows: The Industrial Relations Secretary is, for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of Public Service employees.
9. Section 59 of the GSE Act relevantly provides: (1) In any other Act, in any statutory or other instrument, or in any contract or agreement (whether enacted, made or executed before or after the commencement of this section) - … (b) a reference to a statutory body or statutory officer in the capacity of an employer of persons is, to the extent that the persons concerned comprise persons employed in the Public Service to enable the statutory body or statutory officer to exercise functions, to be read as including a reference to the Government of New South Wales or, as the case requires, to the head of the Public Service agency in which the persons are employed. …
10. Taking the above provisions into account it seems to me that: 1. the proper name of the employer of the staff of the NSWIS may be the Institute of Sport Staff Agency; or the head of the Institute of Sport Staff Agency, being the Chief Executive Officer; or the Industrial Relation Secretary on behalf of the Institute of Sport Staff Agency; or the Government of New South Wales; and 2. in light of s 50 of the GSE Act the applicant is appropriately identified as the Industrial Relations Secretary on behalf of the Institute of Sport Staff Agency.
11. As noted above, the Agreement for which approval is sought, identifies the 'Industrial Relations Secretary on behalf of the Institute of Sport Staff Agency' as the employer party to the agreement.
12. The application for approval was otherwise in accordance with the approved form and included a Statement of Particulars. Annexed to the initial application was a list of 92 staff members who comprise the Respondents to the application. Although these staff members were not listed as respondents in the amended application, they are to be regarded as the Respondents for the purposes of the application.

Analysis of Evidence in Support of the Application

1. Mr Earl's affidavit purported to set out the matters required by r 6.9 of the Industrial Relations Commission Rules 2022. Annexed to the affidavit was a table headed 'Schedule A - Terms and Conditions of Review' which, pursuant to r 6.9(2)(b), compared the conditions of employment under the Agreement with those under various awards. I discuss the nature of these comparisons below.
2. Mr Earl also deposed, in his affidavit, expressly or implicitly, or in oral evidence adduced on 19 January 2023, that: 1. (as required by r 6.9(2)(a)(ii)) - the Agreement will replace the New South Wales Institute of Sport Enterprise Agreement 2020-2022 (EA 19/10); 2. (as required by r 6.9(3)(a)) - the basis on which it is contended that the conditions of employment 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 (as to which, see further below); 3. (as required by r 6.9(3)(b)) - the basis on which it is contended that the Agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW) (as to which, see further below); 4. (as required by r 6.9(3)(c) and (d)) - in his capacity as the employer representative, that the Institute of Staff Agency understands the effect of the Agreement, and has entered into it of its own free will and free of any duress; 5. that the staff voted upon whether to have an Enterprise Agreement via a secret ballot which was independently conducted by "GoVote Pty Ltd" from Monday, 6 March 2023 to Friday, 10 March 2023; 6. staff were informed of the changes to the Agreement via email from their Consultative Committee representative on 28 February 2023 and were provide a track change copy and a clean copy of the Agreement. Information sessions were provided during the voting period on Tuesday 7 March and Thursday 9 March 2023. Twelve staff in total attended those session and members of the Consultative Committee answered questions from staff; and 7. NSWIS relies on an extant determination of the Public Service Commissioner, Graeme Head, dated 15 April 2014, entitled "Determination of classes of exceptions to the maximum period of temporary employment" to allow for temporary employment to extend beyond the maximum period referred to in r 10(1) of the Government Sector Employment (General ) Rules 2014 (NSW).
3. In relation to that last matter, the Agreement provides, in cl 9, that NSWIS Staff are employed in accordance the Summer/Winter Olympic or Paralympic quadrennial period, that is, temporarily, for a fixed term or for a special project.
4. Mr Earl explained in his affidavit that NSWIS was established by the NSW Government in 1996 and staff were employed directly by NSWIS under common law contracts until 2006 "and thereafter by Staffing Agencies under NSW Government legislation." In September 2015 an Administrative Order replaced the staffing agency with the Office of Sport as the employer. Staff continued to be employed under common law contracts until January 2017 when the NSW Institute of Sport Enterprise Agreement 2017-2019 set the terms and conditions of employment and the Institute of Sport Staff Agency became the employer. That agreement was replaced with NSW Institute of Sport Enterprise Agreement 2020-2022, which is to be replaced by the Agreement.
5. Mr Earl also explained that: At the commencement of the Agreement, 1 January 2023, NSWIS will comprise of 93 staff members and any additional new staff member are proposed to be covered by the terms of this Agreement. The roles of Chief Executive Officer, Director, Corporate and Communications, Director High Performance, Director Regional Coaching & Talent and Chief Medical Officer are Senior Executives covered under the Government Sector Employment Act 2013 and are not covered by the terms of this Agreement.
6. Mr Yeomans evidence was short and in the following terms: 1. The [consultative] committee has been consulted and reviewed the changes to the NSW Institute of Sport Enterprise Agreement 2023 - 2023 following the Commission hearing on 22nd March 2023. 2. The committee endorse the changes made to the NSW Institute of Sport Enterprise Agreement 2023-2024. 3. I confirm that the Enterprise Agreement has been entered into by the employees free of any duress or corercion (sic).

Relevant Principles

1. Section 35(1) of the IR Act provides that the Commission may only approve an enterprise agreement if it 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 (b1) in the case of an agreement that covers employees to whom Federal awards would otherwise apply--the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and (b2) in the case of an agreement that covers employees to whom no State or Federal award 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 a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement, and (c) the parties understand the effect of the agreement, and (d) the parties did not enter the agreement under duress.
2. Rule 6.9(3) of the Industrial Relations Commission Rules stipulates that the affidavit to be filed with the application for approval must set out, inter alia, the basis on which it is contended that the requirements of s 35(1) have been met.
3. Section 35(3) of the IR Act provides: 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.
4. Section 33 of the IR Act provides that the Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements and provides guidance as to the content of the principles and the procedures to be following in relation to their review and publication.
5. The Full Bench last reviewed the 'Principles for Approval of Enterprise Agreements' (Principles) on 23 February 2022 in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. Annexure A to that decision are the current Principles set by the Full Bench, to which I have had regard when considering the present application.
6. Part 2 of the Principles set outs the criteria for approval of enterprise agreements.
7. Clause 2.1 of the Principles, which largely reflects the matters required by s 35(1) of the IR Act, provides as follows: Parties must demonstrate to the satisfaction of the Commission that they have followed all the requirements for approval, including: (a) involvement of the parties and/or their representatives in negotiation processes; (b) the parties understand the nature and effect of the agreement; (c) the parties did not enter the agreement under duress; (d) that all relevant employees are covered by the agreement; and (e) that the agreement does not breach relevant statutory requirements, including the requirements of Ch 2, Pt 2 (Enterprise Agreements) of the Act and the Anti-Discrimination Act 1977.
8. Of particular importance in this matter are cll 2.4 and 2.5 of the Principles, which provide as follows: 2.4 The Commission, in accordance with sub-s 35(1) of the Act, is to satisfy itself that: (a) in the case of an agreement that covers employees to whom State awards would otherwise apply, that 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 (b) in the case of an agreement that covers employees to whom no award would otherwise apply, that the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under an award that covers employees performing similar work to that performed by the employees covered by the agreement. 2.5 In determining the "no net detriment" test, in accordance with sub-ss 35(1)(b) and (b2), the Commission will have regard to: (a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s; (b) the conditions in the proposed enterprise agreement being considered as an aggregate package; (c) provisions in the Work Health and Safety Act 2011 (NSW) and regulations directly relevant to the change in work patterns to be performed under the agreement; (d) the needs and circumstances of the enterprise; (e) the wishes of the parties to the agreement; (f) any other matters the Commission considers relevant; (g) test case decisions of the Commission; (h) State decisions setting principles or provisions pursuant to s 51 of the Act; (i) minimum sick leave provisions for awards as prescribed under s 26 of the Act; where such provisions or principles are found in the relevant award/s or which apply to awards generally.
9. As already observed, the non-executive employees of the Applicant are parties to the Agreement, not an industrial organisation representing those employees. Consequently, the provisions of s 36 of the IR Act applies. Section 36 provides: 36 Special Requirements Relating to Enterprise Agreements to which Employees are Parties (1) An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with. (2) Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following-- (a) that an enterprise agreement is proposed or under negotiation, (b) the State or Federal awards or enterprise agreements that then apply to the employees. (3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement. (4) The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted. (5) The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees. (5A) The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that-- (a) the industrial organisation represents any of the employees covered by the enterprise agreement, and (b) the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and (c) an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement. The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person.
10. Lastly, ss 38 and 39 of the IR Act prescribe certain mandatory requirements as to the form and content of enterprise agreements.

Compliance with s 36 of the Industrial Relations Act

1. Pursuant to sub-s 36(2) Professor Kevin Thompson, Chief Executive Officer of the NSWIS advised the Industrial Registrar, by a notice in accordance with approved Form 15 filed on 8 November 2022, that the NSWIS had commenced negotiations on 29 September 2022 with its staff for a new enterprise agreement, which would replace the existing New South Wales Institute of Sport Enterprise Agreement 2020-2022.
2. Pursuant to sub-s 36(3) and reg 4 of the Industrial Relations (General) Regulation 2020, the Industrial Registrar, by letter dated 1 December 2022, a copy of which is on the Commission's file, advised the secretary of Unions NSW, being the relevant State peak council, of the proposed Agreement.
3. On 13 December 2022 the Industrial Registrar provided me with a draft report pursuant to sub-s 36(5) of the IR Act. The report was only prepared in draft as the documentation that had been filed by the Applicant was not sufficient for the Registrar to complete a comparison of the conditions of employment under the Agreement with the conditions of employment that would otherwise apply to the employees under the relevant State or Federal awards or any other relevant conditions of employment. I raised this issue with Mr Earl at the directions hearing on 14 December 2022, at the hearing on 19 January 2023 and in subsequent correspondence. As already noted, the Applicant filed and served further affidavits in support of the application.
4. The Industrial Registrar completed her report and provided it to me on 3 February 2023, after considering the affidavit of Mr Earl of 30 December 2022 and the transcript of the hearing on 19 January 2023. A copy of the report was sent to Mr Earl and to Mr Yeomans. As recorded above, the Agreement for which approval is now sought is different to the Agreement upon which the Registrar reported.
5. There was no application to make an industrial organisation a party to the Agreement and as I am otherwise not satisfied of the matters set out in sub-s 36(5A) of the IR Act, I do not propose to order that an industrial organisation be made a party to the Agreement.

The Secret Ballot

1. Section 36(4) of the IR Act stipulates that the proposed enterprise agreement must be approved by a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted. Section 37 sets out the process for the conduct of such a ballot and allows for complaints regarding the conduct of the ballot to be lodged with, and resolved by, the Industrial Registrar. In addition, cl 2.3 of the Principles sets out conditions that must apply to a secret ballot. Clause 2.3 provides: Where a secret ballot is required pursuant to sub-s 36(4) of the Act, the conditions of the ballot must require that: (a) pursuant to sub-s 37(1) of the Act, a returning officer be a person who is not the employer or a person selected by the employer; (b) to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time the ballot is conducted; (c) each eligible employee is able to vote only once in a ballot; (d) the employees must be able to vote in secret; (e) time/times fixed for the ballot will enable all eligible employees the opportunity to vote where practicable; (f) the ballots must be secure until counting commences; (g) the returning officer must count and declare the result of the ballot; and (h) ballots must be retained until after the agreement is processed by the Commission. Unless the Commission gives leave, the conditions of the ballot must include that: (a) each ballot form must be initialled by the returning officer; (b) counting must not commence until the ballot has closed; and (c) scrutineers may observe the count of the ballot papers; and (d) the Commission may inspect the ballot papers.
2. Mr Earl gave evidence regarding a ballot of employees that was held regarding the Agreement. His evidence was as follows: The staff voted upon whether to have an Enterprise Agreement via a secret ballot which was independently conducted by the GoVote Pty Ltd from Monday, 6 March 2023 to Friday, 10 March 2023. A copy of the report from GoVote on the said ballot is attached to this affidavit as Schedule B. The Consultative Committee appointed the independent ballot manager.
3. 'Schedule B' was a document on GoVote Pty Ltd letterhead headed "Declaration of Results #1991: NSW Institute of Sport Enterprise Agreement 2023-24", had an issue date of 11 March 2023 and was signed by Freyja Tasci, as returning officer and by Nino Fioretti, as returning officer assistant. It contained the following information: Question Do you approve the NSW Institute of Sport Enterprise Agreement 2023- 2024? Count Method First Past The Post Eligible Voters 101 Total Responses 89 (88.1% response rate) Voting Results Yes 88 (98.9%) - MAJORITY No 1 (1.1%)

1. From the above results it can be seen that 87.1% of the employees who are to be covered by the Agreement at the time the ballot was conducted, approved the Agreement. (It may also be observed that as at the date of the vote, NSWIS had 101 employees, up from the 92 named respondents to the present application).
2. The "Declaration of Results" document also contained the following statement of the returning officer: I, the undersigned, being the Returning Officer for NSW Institute of Sport Enterprise Agreement 2023-2024, hereby declare these particulars to be true and correct. I am satisfied that the ballot was conducted fairly, impartially and with transparency. I am not aware of any pending cases that could influence these results.
3. At the hearing on 19 January 2023 Mr Earl gave the following oral evidence in response to a question from me: Q. Can you just explain to me who and what is the consultative committee? A. So the consultative committee is made of Chris [Yeomans], who is the chairperson, and five other staff who volunteered to be - and they're from various areas of the business, so they represent - they're a cross-section of the business. So they represent all sort of departments within the business. For instance, we had a coach and she represented the coaches. We had a sports science - we had the manager sport science and he represented his team. We had two people from the corporate and culture team, so people and culture adviser. So they met. I provided them with options of who we could use and they decided in that committee meeting that they would appoint GoVote, who we had used successfully in the past.
4. Mr Yeomans gave the following oral evidence on 19 January 2023, albeit in relation to the earlier vote which had been held regarding the version of the Agreement that had been filed with the original application: Q. And can you just explain to me why it is that you're here today? A. So I'm the - I represent the staff. I'm the respondent in this matter and the chair of the consultative committee regarding the enterprise agreement. Q. And I understand that options were provided to the consultative committee as to the conduct of a secret ballot, is that right? A. Yes, options were certainly given but we chose to use an external provider. Q. And you're satisfied that that vote was conducted by someone independent of the employer? A. Absolutely.
5. I also note the evidence given by Mr Earl in his affidavit of 28 March 2023 regarding the staff being informed of the changes to the Agreement by an email from their Consultative Committee representative on 28 February 2023 and the information sessions held, which I referred to in paragraph [44(6)] above, and the evidence of both Mr Earl and Mr Yeomans to the effect that the parties understand the effect of the agreement and have not entered into it under duress.
6. In light of the above, I am satisfied that: 1. the provisions of s 37(1) of the IR Act have been complied with, namely, that a secret ballot was conducted by a person, other than the employer or a person selected by that employer, on behalf of the employees entitled to vote in the ballot; and 2. the provisions of s 36(4) of the IR Act and cl 2.3 of the Principles have been substantially complied with.
7. To the extent there is a failure to establish complete compliance with cl 2.3 of the Principles, pursuant to s 35(3) of the Industrial Relations Act, I am satisfied, in light of the evidence, that any departure from cl 2.3 of the Principles will not prejudice the interests of any of the parties to the agreement.

The Agreement

1. It is unnecessary to set out in any detail the changes that will occur to the terms and conditions of employment of NSWIS' employees by the introduction of the Agreement. Essentially the Agreement is not materially different to the NSW Institute of Sport Enterprise Agreement 2020-2022, although the wording has been significant revised. The key changes include: 1. an increase in the rate of pay of 3% for each of the two years of the Agreement inclusive of the statutory increase in superannuation contributions during the life of the Agreement; 2. clarification as to how and when a 'market attraction allowance' is to be paid; 3. clarification as to how and when staff may be re-engaged at the end of their fixed term or specific project; 4. provision for the payment of a loading for casual employees in line with cl 12.3.2 of the Conditions Award; and 5. the need for NSWIS Staff to have an 'active Personal Development Plan" and to "obtain the approval of their Supervisor and the Senior Coordinator, People Development via a completed development application" before planning to attend a staff development and training activity.

Consideration

1. In light of the evidence before the Commission, I am satisfied that the parties have followed the requirements of cl 2.1 (a) - (d) of the Principles and that the requirements of s 35(1)(c) and (d) have been met.
2. The Agreement contains, at cl 21, an anti-discrimination clause substantially in the form of Attachment 1 to the Principles and I have had regard to the principles of the Anti-Discrimination Act 1977 when considering this application, as I am also required to do by virtue of s 169(1) of the IR Act and cl 3.1 of the Principles. I note that according to the Statement of Particulars around 45% of the employees covered by the Agreement are female.
3. In circumstances where the Agreement contains a suitable anti-discrimination clause; I can find no clause which could be described as being directly discriminatory; 87.1% of the employees have approved the Agreement; and Mr Earl has deposed that the agreement complies with the Anti-Discrimination Act 1977, I am satisfied that the requirements of cll 2.1(e) and 3.1 of the Principles and the requirements of s 35(1)(a) of the IR Act, have been met.
4. Clause 2.6 of the Principles stipulates that an enterprise agreement should, where appropriate, facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productively. There is no provision in the Agreement which directly addresses this Principle, however I note that cl 6 of the Agreement provides as follows: 6 Work Environment and culture 6.1 Leadership, position and culture NSWIS is committed to strengthening and maintaining a high performance environment that: (a) Has clear purpose and direction. (b) Encourages Staff Members to support each other in a team environment branded "Team NSWIS". (c) Develops and progresses NSWIS employees and retains identified talent. (d) Celebrates success and empowers people to achieve outcomes. (e) Works collaboratively with key stakeholders.
5. Further, cl 7 of the Agreement provides: In consultation with its Staff, NSWIS will develop strategies aimed at achieving and maintaining a safe and healthy workplace in accordance with the WHS Legislation.
6. "WHS Legislation" is defined in cl 2 to mean: ..the Work Health and Safety Act 2011 (NSW), the Work Health and Safety Regulation 2011 (NSW) each as amended or replaced from time to time, and the other applicable laws in force in New South Wales relating to workplace health and safety.
7. These provisions go at least part of the way to meeting the aspiration set out in cl 2.6 of the Principles, as does the fact that a consultative committee with members representing the different departments with the NSWIS was used to represent the interests of staff in respect of the Agreement. To the extent the Agreement falls short, I note that pursuant to s 35(3) of the IR Act, the Commission may decide to depart from the Principles if such departure would not prejudice the interests of any of the parties to the agreement. In circumstances where the employees, aided by a consultative committee, have voted overwhelmingly in favour of the Agreement, I do not consider that the failure of the Agreement to include formal consultative mechanisms and procedures for consultation on matters affecting efficiency and productivity to be a reason not to approve the Agreement.
8. Clause 19 of the Agreement - 'Grievance and dispute settling procedures' - meets the requirements of criterion 2.7 of the Principles and ss 3(g) and 39(2) of the IR Act.
9. The Agreement is in writing and signed by or on behalf of the parties to it and otherwise meets the requirements of s 38 of the IR Act.
10. The final and most significant issue arising in respect of this application for approval of an enterprise agreement is whether the Agreement complies with the 'no net-detriment test' being the criterion stipulated in cl 2.4 of the Principles and the requirement stipulated in s 35(1)(b) or (b2), (whichever is applicable).

No Net Detriment Test

1. The starting point when considering the 'no net detriment test' is to determine whether a State award [1] would otherwise apply to the employees and if not, what award or awards should be used by way of a comparator, to ensure that the enterprise 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 award (if applicable), or of employees performing similar work to that performed by the employees covered by the enterprise agreement.
2. As noted above, the current terms and conditions governing the employment of the NSWIS Employees are set out in the NSW Institute of Sport Enterprise Agreement 2020-2022. A question arises as to whether that instrument is a "State award" for the purposes of s 35(1).
3. "State award" for the purposes of Part 2 of the IR Act is defined in s 28A as follows: "State award" means-- (a) an award made, or taken to be made, by the Commission under this Act, and (b) any order of the Commission under this Act that sets conditions of employment (but not including a dispute order, an order under Part 6 or a stand-down order under section 126), and (c) a determination under section 52 of the Government Sector Employment Act 2013 , or any similar determination relating to employment in the public sector (including employment with a local health district), and (d) a public sector industrial agreement, and (e) a former industrial agreement, and (f) any other instrument made under this Act, or made under any other Act, relating to conditions of employment that is declared by the regulations to be a State award for the purposes of this Part.
4. The NSW Institute of Sport Enterprise Agreement 2020-2022 does not meet the definition of a State Award. It is self-evidently not any of the things described in s 28A(a), (b), (c) or (f). It is not a 'public sector industrial agreement' which is defined in the Dictionary to the IR Act as follows: "public sector industrial agreement" means an agreement under section 51 of the Government Sector Employment Act 2013, section 87 of the Police Act 1990, section 14 of the Teaching Service Act 1980 or section 26 (4) of the Area Health Services Act 1986 or any similar kind of agreement relating to public sector employees.
5. Whether the NSW Institute of Sport Enterprise Agreement 2020-2022 is a 'former industrial agreement' is a little more complicated. That term is referenced in the Dictionary as follows: "former industrial agreement" --see clause 6 of Schedule 4.
6. Clause 6 of Schedule 4 of the IR Act relates to the continuation of enterprise agreements registered or taken to be registered under the Industrial Relations Act 1991 (NSW), which are in turn defined as 'former enterprise agreement[s]' (i.e. not 'former industrial agreements').
7. Clause 7 of Schedule 7 appears to be more relevant to the term 'former industrial agreement'. It provides: 7 CONTINUATION IN FORCE OF EXISTING FORMER INDUSTRIAL AGREEMENTS An industrial agreement filed under section 11 of the 1940 Act (including a variation of such an agreement) that was continued in force by the 1991 Act and was in force immediately before the repeal of the 1991 Act (a "former industrial agreement") continues in force under this Act and (except as otherwise provided by this Act) is taken to be an enterprise agreement approved under this Act.
8. Thus, while a 'former industrial agreement' is to be taken to be an enterprise agreement approved under the IR Act, an enterprise agreement so-called and approved under the IR Act is not a 'former industrial agreement'.
9. Support for this interpretation can be found in s 8 of the IR Act which provides a list of mutually exclusive items as comprising the umbrella term "industrial instrument": In this Act, "industrial instrument" means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.
10. In the circumstances, while the NSW Institute of Sport Enterprise Agreement 2020-2022 is clearly an 'industrial instrument', it is not a 'State award' within the meaning of s 28A and consequently it is not a relevant comparator for the purposes of s 35(1)(b) of the IR Act. If I am wrong about that, as I observed at paragraph [74], the Agreement is not materially different to the earlier agreement and given the proposed increase in the rate of pay, if s 35(1)(b) applies by virtue of the existence of the earlier enterprise agreement, I would conclude that the Agreement does not provide a net detriment to the employees when compared with the aggregate package of conditions of employment applicable under the earlier agreement.
11. While the Applicant submitted that no State award applied to the employees, it is possible that the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Conditions Award) would otherwise apply to the employees.
12. Clause 6 of the Conditions Award provides as follows: 6. Coverage (a) The provisions of this award shall, subject to cl 6(b) below, apply to all non-executive public service employees as defined in the Government Sector Employment Act, 2013 employed in Departments, Public Service executive agencies related to Departments, and separate Public Service agencies, listed in Schedule 1 to the Government Sector Employment Act, 2013. (b) Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply: (i) If the other industrial instrument or arrangement expressly displaces the entirety of this Award then this Award shall have no application to those employees; (ii) If the other industrial instrument or arrangement expressly displaces one or more provisions of this Award then: (a) this Award shall not apply to those employees covered by the other instrument or arrangement in relation to those provisions, (b) but the balance of this Award shall apply to those employees; and (iii) If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees; (iv) If the other industrial instrument or arrangement comprehensively determines a particular class of conditions of employment for a group of employees, then this Award shall have no application in relation to that group of employees in relation to that class of conditions; (v) If none of subclauses 6(b)(i)-(iv) apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then: a. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; otherwise b. this Award applies. (c) Any officer, Departmental temporary employee and casual employee who, as at 23 February 2014, was employed in a Department listed in Schedule 1, Part 1, of the Public Sector Employment and Management Act, 2002 and who was covered by this award on that date will continue to be covered by this award. NOTATION: This clause was amended in 2014 and again in 2017 with the agreed intention of the parties to maintain the status quo of industrial coverage, by award, other industrial instrument or arrangement, following the commencement of the Government Sector Employment Act 2013 on 24 February 2014.
13. While the Applicant made no concession that the Conditions Award applied, of its own force, to the employees, and if so, to what extent, the Applicant agreed that the Conditions Award, nevertheless, should be one of the comparator awards for the purposes of the no net detriment test. In these circumstances, whether I apply the test in s 35(1)(b), on the basis that the Conditions Award actually applies to the employees; or the test in s 35(1)(b2), on the basis that the Conditions Award does not apply, but is a suitable comparator, the result is the same. As recorded in paragraph [9] above, cl 3.3 of the Agreement also provides that where conditions of employment are not stated in the Agreement, the terms and conditions of the Conditions Award, inter alia, will apply to the extent that there is no inconsistency with the terms and conditions of the Agreement.
14. The Applicant, in Schedule A to Mr Earl's Affidavit of 28 March 2023, compared key clauses in the Agreement with the cognate provisions in the Conditions Award, on the basis that the Conditions Award applies to staff employed by the Office of Sport. I asked Mr Earl about why he had used the Office of Sport as a comparator during the hearing on 19 January 2023: Q. You say in the first line: "This critical clause review compares the terms and conditions of employment with that of the Office of Sport." Can you just explain to me who and what is the Office of Sport and why do you - why have you proposed that as a suitable comparison? A. Okay, yeah. So I suppose the - I'll try to be concise. So the Office of Sport is a New South Wales government agency, executive agency, that is within the sport cluster. We have, for a period of time, actually come under the Office of Sport and they do hire a number of roles that could be considered similar. Q. Okay. A. Could be; not many but could be. And there is an intrinsic link that we have with the Office of Sport. We sit in the same building. Whenever there is a machinery of government change, we move with Sport because we're considered the sport cluster. So we kind of - wherever we get moved, we always get moved together, and for that purpose, I thought it's the appropriate agency to align ourselves to.
15. The Applicant then compared the salaries payable to the NSWIS staff under the Agreement with those paid to persons performing roles similar to the NSWIS staff, under a variety of awards. For instance, a comparison was made with the salary paid to a NSWIS physiotherapist with the salary paid to a physiotherapist pursuant to the NSW Health Service Health Professionals (State) Award 2022. Where there was no obvious suitable salary award comparator the salaries were compared with persons performing similar roles at the Office of Sport, who are apparently paid pursuant to rates prescribed in the Crown Employees (Public Sector - Salaries 2022) Award (Salaries Award).
16. I am satisfied that the comparisons undertaken by the Applicant, as set out in Schedule A and Schedule D (being a spreadsheet showing the salary comparisons made) to the affidavit of Mr Earl, are appropriate. I summarise the conclusions arising from those comparisons below.

Remuneration Generally and Hours of Work

1. Clause 8 of the Agreement sets out how the employees are to be remunerated. It is useful, for the analysis that follows, to set out that clause in full. 8 Remuneration 8.1 Annualised Salary a) The calculation of a NSWIS Employee's Salary in accordance with Schedule 1 covers all incidences of a NSWIS Employee's employment including, but not limited to penalties, loadings, allowances (other than those referred to below, in clause 8.1(b) and elsewhere in this Agreement), additional hours worked, travel time, work outside normal business hours, overtime, work performed on public holidays, and leave loading. Allowances excluded from the operation of this clause are those which are payable for additional responsibilities and are listed elsewhere in this Agreement. b) Allowances are payable in addition to the Salary where those allowances represent payment for work done by a NSWIS Employee at a higher level than that which they are employed pursuant to. c) The Salary amounts specified in Schedule 1 constitute the totality of amounts payable to a Staff Member exclusive of Compulsory Superannuation Contributions. d) The Compulsory Superannuation Contribution is calculated on the total Salary stated in Schedule 1. e) The Salaries prescribed in Schedule 1: i) Will increase from 1 January in each year of the term of this Agreement; where ii) The amount of that increase is prescribed in Schedule 1. f) The increases to Salary and related allowances take into account scheduled increases to Compulsory Superannuation Contributions rising to 11 per cent on 1 July 2023 and 11.5 per cent on 1 July 2024 In the event that either of these increases do not come into effect, then the Salaries in Schedule 1 shall increase by 3% in the same year(s) instead of the percentage stated in Schedule 1. 8.2 Broad remuneration Grades This Agreement prescribes the remuneration grades for NSWIS Staff shown at Schedule 1. Variations to remuneration Grades a) Remuneration is to be paid in accordance with Schedule 1 subject to satisfactory performance. With the exception of where Cl 8.3 is activated. 8.3 Market Attraction Allowance a) This allowance may be paid where the Chief Executive Officer determines at their discretion that a person may be employed as an NSWIS Employee in a Role on terms which are better than those specified in Schedule 1. Specifically, NSWIS may employ a person above the established Salary and Remuneration thresholds for that Role where: i) The strength and quality of the preferred candidate is demonstrably superior to other candidates; and ii) There is identifiable evidence of no alternative, comparable candidate from the field; and iii) Verifiable market evidence is available, to demonstrate that the exercise of the discretion is justifiable so that NSWIS can make a competitive offer to the preferred candidate. b) Recommendations from the Convenor for the exercise of the discretion are submitted for approval to the Chief Executive Officer. c) This allowance is to be treated as Salary for all purposes and is subject to annual general Salary increases and Superannuation. 8.4 Appointment a) New Staff employed in a Role may be assigned at any level within the relevant grade as specified in Schedule 1, depending on their experience, skills and qualifications. b) New Staff will be employed, in the first instance, on a probationary basis for a period that will normally not exceed 6 months. The probation period may be extended to a maximum of one year, at the discretion of the Chief Executive Officer on the recommendation of the Supervisor. 8.5 Salary progression a) Each Staff Member's performance will be formally appraised using NSWIS's Professional Excellence Plan (PEP) biannually. b) Incremental progression to the next step will only be considered where it can be demonstrated through PEP assessments that the Staff Member's performance, contribution and competency level is equivalent to that competency, experience and contribution level of the next higher step based on the recommendation of the Supervisor to the Chief Executive Officer. Recommendations will be considered on an annual basis considering organisational equity and funding. c) Incremental progression may only occur between steps in a particular grade/level assigned to that Role in consideration of clause 8.5(b). d) Additional informal performance conversations will occur throughout the annual cycle. e) Accelerated increments may be considered where a PEP appraisal demonstrates that a Staff Member's competency, experience and contribution is that of a level higher than the next level. The Supervisor may recommend an accelerated increment for the consideration of the Chief Executive Officer. f) The Chief Executive Officer must approve all Salary progressions.
2. 'Salary' is defined in cl 2 of the Agreement to mean: "… the annualised rate of pay. Unless otherwise specified in this Agreement, Part-Time Employees receive Full-Time employment entitlements calculated on a pro-rata basis according to the number of hours an employee works in Part-Time Employment. Employment entitlements to types of paid leave will accrue on the equivalent pro-rata basis.
3. The first point to note is that the 'Salary' to be paid the employees is inclusive of many items that employees covered by the Conditions Award or other applicable award are entitled to in additional to their salary, in particular, but not limited to, overtime, weekend penalty rates, travel time and leave loading. An analysis of the benefits the NSWIS staff would typically receive if the Conditions Award or other applicable award applied and if they were paid at rates provided for in the comparator awards, is therefore required in order to ascertain whether the annualised Salary is sufficient to compensate for all incidences and allowances that would otherwise be payable.
4. It is fair to say that undertaking an analysis of this kind is difficult, particularly in this matter. There are potentially numerous State awards which cover employees performing similar work to that performed by NSWIS staff and each one may provide for allowances and benefits that could be applicable to the NSWIS staff if they were otherwise covered by the comparator award, e.g., meal allowances and laundry allowances. Even if all the relevant allowances and benefits bestowed by comparator awards could be identified, it seems to me that any assessment of the monetary value of the aggregate package of conditions of employment under those comparator awards, measured against the conditions of employment under the Agreement, would likely take a lot of time and effort and at best be a 'guestimate'.
5. For the purposes of meeting the 'no net detriment test' the Applicant undertook an analysis on the basis that: 1. NSWIS staff are not required to travel outside of normal hours, therefore travel allowances would not be payable; 2. NSWIS staff are not required to work overtime (as discussed further below), therefore overtime rates are not applicable; 3. some staff are required to work a certain number of weekends a year for which they may be entitled to be paid at penalty rates; and 4. all staff would otherwise be entitled to leave loading.
6. Other allowances that might be payable under comparator awards have not been considered.
7. Given the difficulties I have identified at paragraph [104] above, I am satisfied that the basis of upon which the Applicant undertook its analysis for the purposes of the 'no net detriment test' is appropriate. In coming to this view, I have had regard to cl 2.5(e) of the Principles which states that in determining the 'no net detriment test' the Commission will have regard to the wishes of the parties to the agreement and to cl 2.5(f) of the Principles which allows the Commission to have regard to any other matters the Commission considers relevant. Given the difficulties in conducting an accurate comparison of benefits and conditions, it is appropriate that at least the 'big ticket items', namely penalties, overtime and leave loading, are included in any analysis as to whether the "all incidences" Salary adequately remunerates NSWIS staff.
8. In respect of the requirement to work overtime, the Applicant pointed out that the hours of work provision in the Agreement (cl 11) is generally in line with the Conditions Award, but also includes the following: 11.5 Where possible NSWIS will ensure that records regarding employee hours will be kept. The Supervisor has the authority to provide the employee with time off to ensure hours worked average 35 over 52 weeks.
9. The Applicant explained in Schedule A to Mr Earl's affidavit that the Office of Sport employees work flexible working hours in accordance with cl 21 of the Conditions Award, rather than claim overtime. The Applicant submitted that cl 11.5 operated in a manner similar to cl 21 of the Conditions Award or other awards that permit flexible working hours, such that employees will not be required to work beyond their ordinary number of hours per week, averaged over 52 weeks, without being given time off in lieu. The Applicant also explained in Schedule A to Mr Earl's affidavit that employees are not required to travel outside of work hours, (although I note this is not expressly stated in the Agreement), but that they may be required to work a certain number of weekends from time to time and that this has been taken into account in the comparison analysis undertaken by the Applicant, which I explain further below.
10. The Applicant's evidence in respect of the above matters was unchallenged.
11. Clause 8.3 of the Agreement provides for the payment of a 'Market Attraction Allowance' which is a benefit not available under any of the comparator awards.

Terms of Engagement and Types of Employment

1. Clause 9 of the Agreement deals with terms of engagement. Shortly stated, the clause provides that employees are engaged on temporary contracts for a fixed term of 4 years, in line with the Olympic cycles, or for a specific project and then, depending on funding and organisational and sport priorities, roles may be established which are equivalent or similar to the roles in the previous quadrennium, and subject to demonstrating a capability match to the new role, NSWIS may, at its discretion, consider offering new employment to the staff member.
2. Under r 10 of the Government Sector Employment (General) Rules 2014 the maximum period for which a public service non-executive employee may be employed in temporary employment in the same public service agency is 4 years within any continuous period of 5 years. Sub-r 10(3) provides that the Public Service Commissioner may determine classes of exceptions to this rule.
3. Mr Earl annexed to his affidavit a copy of a determination dated 15 April 2014 made by the Public Service Commissioner, Graeme Head, titled 'Determination of classes of exceptions to the maximum period of temporary employment'. According to oral evidence given by Mr Earl, the determination applies to staff of the NSWIS to enable staff to be hired on a quadrennial basis, in line with the Olympic cycle.
4. While the determination permits the employment of staff on serial temporary contacts, such arrangement is prima facie inferior to the conditions of employment enjoyed by other public service employees to whom r 10 of Government Sector Employment (General) Rules 2014 applies, including, so I understand, employees of the Office of Sport. However, the protection afforded by r 10 is not a 'condition of employment under a State award' and accordingly it is not relevant for the purposes of conducting the comparison required by either s 35(1)(b) or (b2).
5. Clause 10 of the Agreement deals with types of employment: full time, part-time and casual. The clause is generally consonant with the provisions of the Conditions Award, save that the remuneration payable for each type of employment is inclusive of allowances, including overtime, as discussed above.

Staff Development and Training

1. Clause 13 of the Agreement deals with staff development and training. While different in terms to cl 85 of the Conditions Award which deals with 'Employee Development and Training Activities' the essential matters covered by cl 85 are covered by cl 13, namely: staff are able to attend development and training activities; such attendance which will be recognised as performing normal duties; and expenses may be reimbursed.

Leave

1. Clause 15 of the Agreement deals with leave.
2. Clause 15.1 of the Agreement provides paid study leave of up to ten days per year which is superior to the 5 days exam leave under the Conditions Award at cl 84.5.
3. Clause 15.2 provides for up to four weeks paid special leave to enable employees selected in an official capacity to attend Commonwealth, Olympic or Paralympic events, with an additional four weeks where pre-competition obligations are warranted. This is not a condition found in the Conditions Award.
4. As noted already, cl 3.3 of the Agreement provides that the Conditions Award will apply where conditions of employment are not specified in the Agreement. While 'leave' strictly is 'specified' in the Agreement, Mr Earl has indicated in his affidavit that it is intended that all other types of leave available under the Conditions Award will be available to NSWIS employees.

Grievances

1. Clause 19 of the Agreement prescribes grievance and dispute settling procedures which are broadly in line with cl 9 of the Conditions Award.

Salary Comparison

1. Schedule 1 of the Agreement contains a table setting out the remuneration grades applied by NSWIS and the current salary (as at 2022) for each grade, the salary for 2023 (being the 2022 salary with a 2.53% increase) and for 2024 (with a further 2.53% increase).
2. As noted above, NSWIS have identified a number of roles within NSWIS that have specific comparator awards for the purposes of comparing salaries, with the salaries of the balance of the roles being compared with those performing similar roles at the Office of Sport, which are paid pursuant to the Salaries Award.
3. I set out below a summary of the comparisons made with respect to a number of specific roles identified by Mr Earl in Schedule A to his affidavit, based on the information given by Mr Earl. The comparator award rates quoted for salaries were confirmed and/or amended as appropriate by the Industrial Registrar. In the absence of any dissent from the Respondents, I have accepted that the NSWIS grade for the identified role equates to the grade identified by Mr Earl as being the equivalent grade under the comparator award.
4. As explained in paragraph [105] above, the Applicant has also incorporated into its comparison, certain assumptions regarding the benefits staff employed in certain roles would receive under the comparator awards, in particular penalty rates and leave loading. These assumptions, where made, are set out in the table below. Role at NSWIS Grade at NSWIS Salary at NSWIS [2] Equivalent Grade under Comparator Award Salary under Salary under Comparator Award Difference Comparator Award plus any penalties and leave loading Roles compared to those under the NSW Health Service Health Professionals (State) Award 2022 and the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2021 [3] with assumption that 5 weekends worked at penalty rates and leave loading paid, but no overtime or travel time. Note: Under the Agreement NSWIS Staff are required to work 35 hours a week, but staff under the comparator awards are required to work 38 hours a week. Physiotherapist Grade 3, Level 2, Entry $113,497 Level 3, $105,093 $109,020 $4,477 Year 1 Senior Physiotherapist Grade 3, Level 3, Entry $121,603 Level 4, $114,042 $118,304 $3,299 Year 1 Head of Performance Health Grade 4, $145,924 [4] Level 7, $142,167 $147,480 ($1,556) (c.f. Unit Head) Level 2. Entry Year 1 Physiologist Grade 3, Level 1, Entry $105,391 Level 2, $90,261 $93,634 $11,757 Year 2 Senior Physiologist Grade 3, Level 2. Entry $113,497 Level 3, $105,093 $109,202 $4,477 Year 1 Dietitian Grade 3, Level 1, Entry $105,391 Level 2, $90,261 $93,634 $11,757 Year 2 Senior Dietitian Grade 3, Level 2, Entry $113,497 Level 3, $105,093 $109,020 $4,477 Year 1 Assistant Physiologist / Grade 2, Level 1, Entry $81,069 Level 1, $69,982 $72,597 $8,472 Dietitian Year 2 Roles compared to those under the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 [5] with assumption that 5 weekends worked at penalty rates and leave loading paid, but no overtime or travel time. Note: Under the Agreement NSWIS Staff are required to work 35 hours a week, but staff under the comparator award are required to work 38 hours a week. Grade 3, Level 1, Strength and Conditioning Coaches Entry - $105,391 - Clerk, $101,947 - $117,066 ($366) - Grade 3, Level 2, $118,361 Grade 7 - Grade 8 $112,849 ($3,569) Step 3

Roles compared to those under the Crown Employees (Psychologists) Award [6] No weekend penalty rates are payable under this award. Staff required to work 35 hours a week averaged over 52 weeks. Assumed only leave loading paid, no overtime, no travel time. Performance (Sport) Psychologist Grade 3, Level 1 - Grade 3, Level 2, $105,391 - Specialist Psychologist $102,344 - $103,717 - $1,674 - Step 3 $118,361 [7] $125,510 $127,194 ($8,833) Roles compared to those under the Sporting Organisations Award 2020 (Federal) No weekend penalty rates are payable under this award. Assumed on leave loading paid, no overtime, no travel time. Note: Under the Agreement NSWIS Staff are required to work 35 hours a week, but staff under the comparator awards are required to work 38 hours a week. Gen 32 Coach Grade 1, Level 5 $72,963 - Grade 2 $62,497 $63,335 $9,628 - $77,827 $14,492 Assistant Coach Grade 2, Level 1 $81,069 - Grade 2 $62,497 $63,335 $17,734 - $85,934 $22,599 Assistant Coach Lead Grade 2, Level 2 $89,175 - Grade 3 $75,106 $76,114 $13,061 - $94,039 $17,925 Assistant Coach National Grade 2, Level 2 $89,175 - Grade 3 $75,106 $76,114 $13,061 - $94,039 $17,925 Coach Grade 2, Level 3 $97,284 - Grade 3 $75,106 $76,114 $21,170 - $102,148 $26,034 National Coach Grade 3, Level 1 $105,391 - Grade 4 $85,160 $86,302 $19,089 - $108,057 $21,755 Head Coach Program Grade 2, Level 2 $113,497 - Grade 4 $85,160 $86,160 $27,337 - $118,361 $32,201

1. In short, the evidence shows that of the roles identified by the Applicant with a specific comparator award, three roles are potentially to be remunerated in an amount less than the comparison role, namely Head of Performance Health; Strength and Conditioning Coaches; and Performance (Sport) Psychologists. However, upon closer inspection I am satisfied that this will not be the case in respect of two of those roles.
2. In the case of the Head of Performance Health, the comparison role is required, under the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2022, to work 38 hours a week, compared to 35 hours a week. Further, the current Head of Performance Health is paid at Grade 4, Level 2, Step 2 - $154,032, $6,552 more than the comparison role including penalty rates and leave loading.
3. In the case of Strength and Conditioning Coaches, they too are only required to work 35 hours a week, compared to the comparison role under the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009.
4. In respect of the Performance (Sports) Psychologist, the discrepancy only arises if the role is paid at the Grade 3, Level 2, Step 3 rate. According to the evidence NSWIS currently only has one Sport Psychologist who is paid at Grade 3 Level 3 Entry - $121,603, which reduces the discrepancy from $8,833 to $5,591. That discrepancy is a concern, but only affects one of the 92 plus employees of NSWIS.
5. There are two 'sport science' roles for which the Applicant was unable to find a specific comparator award, namely Biomechanists and Performance Analysts. NSWIS also employs persons in various administrative and management roles. In respect of Biomechanists, Performance Analysts and administrative and management roles the Applicant considered that the people employed at the Office of Sport, (to whom the Conditions Award and the Salaries Award apply) were performing similar work to that performed by the employees covered by the Agreement, and then explained that: The Office of Sport and NSWIS use the Mercer system of role evaluation as endorsed by the NSW government. A role is evaluated and then given a score. The role is then assigned a grade using a points to grade scale …. For example; a People and Culture coordinator role have been evaluated with a Mercer score of 256 therefore the role is graded as Grade 2 Level 3 within the agreement.
6. I understand, although there was no evidence to this effect, that the role evaluation conducted by Mercer is designed to enable roles in different areas of the public sector to be compared and thereby ensure some kind of remuneration parity for roles with equivalent levels of skill, responsibilities and accountabilities. No evidence was provided as to the process Mercer uses to evaluate each role, but again, in the absence of any objection from the Respondents, I am prepared to accept that the evaluation process undertaken by Mercer is an appropriate way to compare 'apples with apples.'
7. Schedule A to Mr Earl's affidavit contained the following three tables setting out the Mercer score allocated to each NSWIS grade level; the Mercer score allocated to the roles at the Office of Sport which, have been graded by reference to the Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007 (which in turn applies the Salaries Award); and a comparison of the remuneration payable under the Salaries Award together with leave loading, with the salary payable under the Agreement, by reference to the Mercer scoring system, in 50 point increments. NSWIS Mercer Score 2023 Salary Grade Min Max Min Max Grade 1 Level 1 0 40 $ 42,156 $ 48,651 Grade 1 Level 2 41 70 $ 50,262 $ 55,127 Grade 1 Level 3 71 91 $ 56,748 $ 61,614 Grade 1 Level 4 92 117 $ 64,855 $ 69,720 Grade 1 Level 5 118 149 $ 72,963 $ 77,827 Grade 2 Level 1 150 199 $ 81,069 $ 85,934 Grade 2 Level 2 200 249 $ 89,175 $ 94,039 Grade 2 Level 3 250 289 $ 97,284 $ 102,148 Grade 3 Level 1 290 340 $ 105,391 $ 110,255 Grade 3 Level 2 341 399 $ 113,497 $ 118,361 Grade 3 Level 3 400 490 $ 121,603 $ 126,469 Grade 4 Level 1 491 549 $ 129,711 $ 141,872 Grade 4 Level 2 550 599 $ 145,924 $ 158,086 Grade 4 Level 3 600 700 $ 162,139 $ 174,300

Office of Sport Mercer Score 1/07/2022 Min Max Min Max Clerk General 40 104 $ 32,914 $ 67,184 Clerk Grade 1 105 127 $ 67,975 $ 69,973 Clerk Grade 2 128 149 $ 71,926 $ 73,901 Clerk Grade 3 150 180 $ 75,992 $ 78,285 Clerk Grade 4 181 209 $ 80,728 $ 83,211 Clerk Grade 5 210 250 $ 89,707 $ 92,536 Clerk Grade 6 251 289 $ 96,164 $ 98,982 Clerk Grade 7 290 340 $ 101,947 $ 104,994 Clerk Grade 8 341 389 $ 109,371 $ 112,849 Clerk Grade 9 390 452 $ 116,211 $ 119,479 Clerk Grade 10 453 514 $ 124,357 $ 128,061 Clerk Grade 11 515 592 $ 134,411 $ 140,109 Clerk Grade 12 593 669 $ 148,885 $ 155,445

Mercer Score Clerical Award NSWIS EA Difference Base Lve Load Total Rate 17.5% 100 $62,134 $ 834 $ 62,968 $64,855 $ 1,887 150 $75,992 $ 1,019 $ 77,011 $81,069 $ 4,058 200 $80,728 $ 1,083 $ 81,811 $89,175 $ 7,364 250 $89,707 $ 1,203 $ 90,910 $97,284 $ 6,374 300 $101,947 $ 1,368 $ 103,315 $105,391 $ 2,076 350 $109,371 $ 1,467 $ 110,838 $113,497 $ 2,659 400 $116,211 $ 1,559 $ 117,770 $121,603 $ 3,833 450 $116,211 $ 1,559 $ 117,770 $121,603 $ 3,833 500 $124,357 $ 1,668 $ 126,025 $129,711 $ 3,686 550 $134,411 $ 1,803 $ 136,214 $145,924 $ 9,710 600 $148,885 $ 1,997 $ 150,882 $162,139 $ 11,257 650 $148,885 $ 1,997 $ 150,882 $162,139 $ 11,257

1. Accepting the assumptions upon which the above tables are based, I am satisfied that the remuneration to be paid to the balance of the roles at NSWIS is at least as favourable to those employees as it is for employees performing similar work.

Conclusion with respect to the No Net Detriment Test

1. In all of the circumstances outlined above, I am satisfied that the Agreement does not, on balance, provide a net detriment to the NSWIS employees covered by the Agreement, when compared with the aggregate package of conditions of employment under suitable comparator awards that cover employees performing similar work to that performed by the NSWIS employees. As I have already mentioned above, in coming to this view, I have also taken into account, as I am permitted to do pursuant to cl 2.5(e) of the Principles, that the employees have overwhelmingly indicated that they are happy with the Agreement and no employee appeared at the hearing of the approval application to voice any opposition to the approval.

Orders

1. I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all the necessary statutory tests and the Principles. I make the following orders: 1. The NSW Institute of Sport Enterprise Agreement 2023 - 2024 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW) and will apply, in accordance with cl 24 of the Agreement, from 1 January 2023 and will remain in force until 31 December 2024 unless otherwise varied or rescinded. 2. The Industrial Registrar is directed to enter the New South Wales Institute of Sport Enterprise Agreement 2023-2024 in the register of approved enterprise agreements. Janet McDonald Commissioner

Endnotes

1. State public sector employees are not national system employees and are not covered by Federal awards. See definition of Federal award in s 28A of the IR Act; Industrial Relations (Commonwealth Power) Act 2009 (NSW), ss 3, 5 and 6(b); Fair Work Act 2009 (Cth), ss 13, 14, 30C, 30D, 30M.
2. As at 1 January 2023.
3. The Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2021 has been superseded by the Public Hospitals (Professional and Associated Staff) Conditions of Employment (State) Award 2022, however the provisions relating to penalties and leave loading have not changed.
4. Incumbent currently paid at Grade 4, Level 2, Step 2 - $154,032.
5. Clause 10.3 of the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009 provides: "The salaries in this award are set in accordance with the Crown Employees (Public Sector - Salaries 2019) Award or any variation or any replacement award."
6. Clause 6.2 of the Crown Employees (Psychologists) Award provides: "The salary rates and allowance set at the date of commencement of this Award will increase in accordance with the Crown Employees (Public Sector - Salaries 2021) Award and any variation or replacement award."
7. Incumbent currently paid at Grade 3, Level 3, Entry - $121,603.

Amendments 17 April 2023 - Corrections made in Paragraph [15]. 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: 17 April 2023