New South Wales Local Government Clerical Administrative Energy Airlines & Utilities Union v Port Stephens Council [2025] NSWIRComm 1062

1. The Commission is empowered under this section to give full legal effect to parties' agreements reached in conciliation. The importance of the power was acknowledged by the Honourable Jeff Shaw in the Second Reading Speech of the Industrial Relations Bill 1995:

"..., in recognition of the fact that the majority of matters before the commission are settled by consent, the commission is empowered to give full legal effect to all such agreements..."[1]

1. This Commission recently considered the application of s 174(b) in New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council [2025] NSWIRComm 1039. In this case Commissioner O'Sullivan stated at [8]-[12]:

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

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

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

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

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

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

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

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

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

1. I adopt Commissioner O'Sullivan's approach as to the exercise of my discretion at [12] in the above extract.
2. As set out above, this dispute was the subject of conciliation conducted by me, and settlement was reached through this mechanism. Accordingly, the first matter is satisfied.
3. The terms of the settlement do not constitute an illegality or invalidity. Further, there is nothing before the Commission, in neither submissions nor in evidence, that would disprove this conclusion. As such, the second matter is satisfied.
4. Mr Hutchinson submitted that the Agreement provides a "just and mutually agreed outcome that is acceptable" to the union, the members, and to the employer: AOS par 8. This submission was supported by the Council.
5. There is 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. Thus, the third matter is satisfied.
6. In Timothy Fox v Gio Australia Limited [2002] NSWIRComm 318, Walton J observed at [102] that:

"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...."

1. With all three conditions being met, it is in the interests of justice that I make the orders sought by consent.

1. Pursuant to s 174(b) of the Industrial Relations Act 1996 and to give effect to the terms of settlement reached between the parties in dispute 2025/293983 I make the following order:

(1) Port Stephens Council is to pay all "Eligible ECEC Workers" as defined in clause 4 of the Port Stephens Early Childhood Education and Care Worker Retention Grant Agreement which is "Attachment 1" to this decision ("the Agreement") in accordance with the terms of the Agreement.

Attachment 1 (2.20 MB, pdf)

[1] New South Wales Legislative Council, Parliamentary Debates (Hansard) 23 November 1995 at 3852.