New South Wales Local Government Clerical Administrative Energy Airlines & Utilities Union v Newcastle City Council

Medium Neutral Citation: New South Wales Local Government Clerical Administrative Energy Airlines & Utilities Union v Newcastle City Council [2026] NSWIRComm 1104

Hearing dates: 21 October 2026

Date of orders: 21 October 2026

Decision date: 21 October 2026

Jurisdiction: Industrial Relations Commission

Before: Commissioner O’Sullivan

Decision: An order pursuant to s 174(b) of the Industrial Relations Act 1996 in the terms of the “City of Newcastle Enterprise Agreement Early Childhood Education and Care Worker Retention and Workplace Conditions Payment Agreement” attached to this decision.

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – Industrial Relations Act 1996 (NSW) s 174(b) – whether the Commission should exercise discretion and make orders – factors relevant to exercise of discretion

Legislation Cited: Industrial Relations Act 1996

Cases Cited: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039
Timothy Fox v GIO Australia Limited (2002) NSWIRComm 318
Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297
McLennan & Anor v Infinity Constructions Pty Limited & Ors [2007] NSWIRComm 10

Texts Cited: NIL

Category: Procedural rulings

Parties: New South Wales Local Government Clerical Administrative Energy Airlines & Utilities Union (Notifier)
Newcastle City Council (Respondent)

Representation: Solicitors:
Mr L Hutchison (Notifier)
Mr P Bell (Respondent)

File Number(s): 2026/00326128

Publication restriction: Nil

ex tempore decision

1. By way of a notice of motion filed on 8 October 2026, and amended at today’s hearing, the notifier, with the consent of the respondent, seeks an order pursuant to s 174(b) of the Industrial Relations Act 1996 (NSW) (the “Act”) that the respondent pay eligible employees in accordance with the terms of settlement entitled “City of Newcastle Enterprise Agreement Early Childhood Education and Care Worker Retention and Workplace Conditions Payment Agreement”, annexed to the amended notice of motion (The Agreement).

2. In support of that application, the notifier relies upon the affidavit of Mr Luke Hutchinson. The respondent relies upon the affidavit of Mr Mitchell. Both affidavits were read into evidence.

3. The Agreement will give effect to an in-principal agreement reached during conciliation concerning two issues. The first is the payment of a retention allowance to certain employees of the respondent, which are in addition to the entitlements otherwise payable under the terms of the City of Newcastle Enterprise Agreement 2026.

4. In relation to the retention allowance, the Agreement is in almost identical terms to the orders made by the Commission pursuant to s 174 of the Act in New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039 (USU Decision).

5. The second part of this dispute concerned the payment of a nappy allowance.

6. The principles relevant for the making of an order pursuant to s 174 are detailed in in the USU Decision at paragraphs [7] through to [12] of that decision, which are set out below:

“[7] Section 174 is in the following terms:

174 Powers when application settled by conciliation

If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may--

(a) dismiss the application, or

(b) make an order on the agreed terms for settlement.

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

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

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

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

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

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

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

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

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

7. Dealing with the first matter requiring determination before orders can be made (i.e. was the settlement of the dispute was reached via conciliation conducted by the Commission), conciliation was conducted by this Commission on 12 August, 15 September and 24 September 2026 and accordingly this requirement has been met.

8. Second, the terms of the settlement do not constitute an illegality or invalidity. No illegality or invalidity is apparent in making the orders sought in the notice of motion and such a conclusion is consistent with the evidence before the Commission and from my own observations during the conciliation conferences.

9. Thirdly, I am also satisfied that the settlement was not reached, whether in whole or in part, as a result of unconscionable conduct by either party.

10. Accordingly, I am satisfied that each of the three matters required to be established before the orders can be made have been established. In reaching that conclusion, I also have regard to the following observation of Walton J in Timothy Fox v GIO Australia Limited (2002) NSWIRComm 318 at [102]:

“Considerations of justice favour the conclusion that, subject to any absolute or clear legal bar to the contrary, the Commission should act pursuant to s 174 of the Act to give effect to the compromise or bargain entered into by the parties.”

11. For the reasons above, I make the following order:

12. An order pursuant to s 174(b) of the Industrial Relations Act 1996 in the terms of the “City of Newcastle Enterprise Agreement Early Childhood Education and Care Worker Retention and Workplace Conditions Payment Agreement” attached to this decision.

Attachment (141 KB, rtf)

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