New South Wales Local Government, Clerical, Administrative, Energy, Airlines... [2025] NSWIRComm 1039 | Case summary

Industrial Relations Commission (NSW)|2025-06-18|Before: Glynn J

On 18 June 2025 I made an order (the "Order") pursuant to s174 (b) of the Industrial Relations Act 1996 ('the Act') and I now provide my reasons.
The parties by way of an amended notice of motion, supported by an affidavit of Mr Hutchison an officer of the notifier, applied for the Commission to make the Order which enshrined the terms of a settlement reached in resolution of this dispute.
The subject of the dispute involved the terms and the means by which the parties were to give effect to an in-principal agreement for the payment of a retention payment to certain employees of the respondent. This payment is in addition to the entitlements that these employees receive under the terms of the City of Newcastle Enterprise Agreement 2023.
The payment was stated to be contingent upon the respondent obtaining the necessary funding approval from the Commonwealth Government under the Commonwealth Government's Early Childhood Education and Care (ECEC) Worker Retention Payment.
The proceedings were notified as a dispute pursuant to s130 of the Act and were the subject of conciliation conducted on 3, 4 and 17 June 2025.
At the conclusion of the 17 June 2025 listing, the parties with the assistance of the Commission, reached a settlement, with respect to the terms of which are sought to be given effect by an order of the Commission under of the .

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.

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.
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.
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.
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)."

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.

There is no issue that the dispute was the subject of conciliation conducted by the Commission and that settlement was reached through this mechanism and accordingly the first matter is satisfied.
Turning to illegality and invalidity, I was satisfied that neither exists given the content of the terms of settlement, the evidence before the Commission and the submissions of the parties.
Finally, there was nothing before the Commission that would give rise to any suggestion that the terms of the settlement were achieved as a result of unconscionable conduct of either or both of the parties.
In determining that the Orders be made I reached the conclusion that each of the three matters listed above were satisfied and I also had 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 s174 of the Act to give effect to the compromise or bargain entered into by the parties...."

For the above reasons I made an order pursuant to s 174(b) of the Industrial Relations Act 1996 in the terms of the agreement set out in "Attachment 1" of this decision.

1 City of Newcastle Early Childhood Education and Care Worker Retention Payment Agreement

1.1 This agreement is made in full and final settlement of IRC Case number 2025/00206216 a section 130 Dispute Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council, and shall be known as the "Early Childhood Education and Care (ECEC) Worker Retention Payment Agreement" ('the Agreement').

Terms & Conditions - Salary system rate of pay and the Retention Allowance for ECEC workers

Means the Local Government Award 2023 and its successor/s

means Newcastle City Council and/or City of Newcastle.

Means the City of Newcastle Enterprise Agreement 2023 and its successor/s

means a person employed to work at CN who are undertaking duties the same as those covered by the Cth Children's Services Award 2010 [MA000120] ("CS Award") or Educational Services (Teachers) Award 2020 [MA000077] ("ES (Teachers) Award")

Means the United Services Union (New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union)

Opportunity Guidelines published by the Department of Education, Australian Government, in October 2024.

ES (Teachers) Award is a reference to the Early Services (Teachers) Award 2020 [MA000077].

means the grant provided by the Australian Government to support a wage increase for eligible ECEC workers from December 2024, which opened in October 2024 and closes in September 2026.

means the same meaning as under the Early Childhood Education and Care Worker Retention Payment Grant and/or as defined in clause 6

means the Early Services (Teachers) Award 2020 [MA000077].

means the CN EA 2023 "Schedule 1: Definitions - Ordinary Time Rate of Pay" definition.

means the CN EA 2023 "Schedule 1: Definitions - Ordinary Pay" definition.

means the rate of pay an employee is entitled to receive under CNs salary system.

4.1 The parties to the Agreement are CN and the Union.

5.1 This Agreement puts in place special interim arrangements to assist in ensuring that CN as a provider of CCS approved services may be eligible for the Commonwealth's Early Childhood Education and Care Worker Retention Payment Grant.

5.2 This Agreement shall not set any precedent in relation to Award/EA entitlements after its expiry.

6.1 The Agreement shall apply from 2 December 2024 and shall operate until the 30 November 2026; unless CN ceases to be eligible for the Commonwealth's Early Childhood Education and Care Worker Retention Payment Grant and in that circumstance the Agreement terminates on the date of ineligibility.

6.2 This Agreement shall apply to ECECW who work in a CN workplace that is a Child Care Subsidy ("CCS") approved Centre-Based Day Care ("CBDC") or Outside School Hours Care ("OSHC"); and who are determined by the Commonwealth Department of Education to be eligible for the Early Childhood Education and Care Worker Retention Payment Grant ("ECEC Worker Retention Payment Grant").

6.3 Subject to subclause 6.1, this Agreement applies to all employees of CN identified in clause 6.4 who are undertaking duties the same as those covered by the Cth Children's Services Award 2010 [MA000120] ("CS Award") or Educational Services (Teachers) Award 2020 [MA000077] ("ES (Teachers) Award") that are eligible Early Childhood Education and Care workers ("Eligible ECEC workers").

6.4 This Agreement does not apply to trainees who are undertaking a registered traineeship and whose pay and conditions are not covered by the CS Award or the ES (Teachers) Award.

7 Terms & Conditions - Salary system rate of pay and the Retention Allowance for ECEC workers

7.1 This Agreement provides for the payment of an allowance to the ECECW in addition to:

their CN Ordinary Time Rate of Pay; and
any other applicable allowances received; and
shall be an allowance regularly received within their Ordinary Pay.

7.2 Part A Retention Allowance (from 2 December 2024)

(a) Subject to subclause 7.2(b), effective from 2 December 2024 ECECW shall be paid a Part A Retention Allowance equal to the amount per hour set out in either:

(i) Column 3 in Table 1 of Schedule B for the relevant classification under the CS Award, or

(ii) Column 3 in Table 2 of Schedule B for the relevant classification under the ES (Teachers) Award.

(b) ECECW shall immediately cease to be entitled to the Part A Retention Allowance if the Commonwealth Government ceases to fully fund the employer for the allowance under the ECEC Worker Retention Payment Grant.

7.3 Part B Retention (Supplement) Allowance (from 1 July 2025)

(a) Subject to subclauses 7.3(b) and 7.3(c), effective from the first full pay period commencing on or after 1 July 2025, employees shall be paid a Part B Retention (Supplement) Allowance equal to the increase in rates of pay under the CS Award or the ES (Teachers) Award (if any) arising from the Annual Wage Review of the Fair Work Commission ("FWC") for the 2025/2026 period.

If the relevant minimum hourly rate under the CS Award is currently $30 per hour and the FWC increases the award rate by 5%, the minimum hourly rate will increase by $1.50 per hour. The amount of the Part B Retention (Supplement) Allowance will be $1.50 per hour.

(b) The Part B Retention (Supplement) Allowance specified at subclause 7.3(a) of this Agreement may be absorbed into enterprise increases under the CN EA 2023 which take effect between 1 July 2025 and 30 June 2026.

If the FWC increases rates of pay under the CS Award by 5% from 1 July 2025, and the rates of pay under the CN EA 2023 increase by 3% between 1 July 2025 and 30 June 2026:

Step 1: calculate the quantum of the increase to the CS Award as per the example at subclause 10.4(a) of this Award

Step 2: calculate the quantum of the increase to the CN EA 2023 (3% x salary system rate = $Y)

The Part B Retention (Supplement) Allowance will equal the quantum amount in Step 1 ($X) minus the quantum amount in Step 2 ($Y).

(a) ECECW shall immediately cease to be entitled to the Part B Retention (Supplement) Allowance if the Commonwealth Government ceases to fully fund CN for the Part A Retention Allowance at clause 7.2 and the Part C Retention Allowance at clause 10.5.

7.4 Part C Retention Allowance (from 1 December 2025)

(a) Subject to subclause 7.4(b), effective from 1 December 2025 ECECW shall be paid a Part C Retention Allowance equal to 5% of the relevant hourly rate of pay under the CS Award or the ES (Teachers) Award.

(b) ECECW shall immediately cease to be entitled to the Part C Retention Allowance if the Commonwealth Government ceases to fully fund CN for the allowance under the ECEC Worker Retention Payment Grant.

8.1 Leave is reserved for the Parties to this Agreement to vary this Agreement should the eligibility criteria for the Commonwealth's Early Childhood Education and Care Worker Retention Payment Grant be varied.

CN and the Union are in the process of making a new Certified Agreement (EA 2026) and the parties to the dispute undertake to incorporate this settlement Agreement's terms and conditions into EA 2026.

Table 1 - Hourly quantum increases applying to the Children's Services Award 2010 as of 2 December 2024

Table 2 - Hourly quantum increases applying to the Educational Services

Educational Services (Teachers) Award 2020 Classification

26 November 2025 - Schedule B added pursuant to UCPR 36.17

New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039

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