NSW Local Government Clerical, Administrative, Energy, Airlines and Utilities Union v Riverina Water County Council; Riverina Water County Council Enterprise Award 2025 [2025] NSWIRComm 1052

"1. The parties have been in the process of bargaining for a new Enterprise Award being the Riverina Water County Council 2025-2028. Bargaining has been occurring for approximately six months and has reached a point where it can't progress further.

2. A number of matters as a whole remain unresolved however for the notifier 2 impasses have been reached, the implementation of a 35 hour work week for all employees with no financial loss, [and] the pay offer.

3. The change in hours of work has become a primary focus of the applicant (sic) and was a matter arising from the previous award. The respondent stated they would engage in a productivity review to see if this was an option but has not genuinely considered or given the opportunity to work on this matter. As a result the respondent has been resistant to this position through the course of bargaining which has led to our members taking industrial action on two occasions.

4. For this reason the pay offer currently pressed by the respondent is unacceptable for the Notifier and as we understand is not supported by the other two respondent unions. The respondent has currently offered 13% increase over 3 years.

5. In the bargaining meeting held on the 27th of [M]ay the respondent General Manager/CEO put the position this is the respondent's final pay offer and that [the respondent] would file [an application for a new award] without consent if the position was not accepted.

6. As a result the USU has taken the position to file proceedings and seek the assistance of the commission to establish a new award through a bargaining dispute.

7. We seek the intervention of the commission regarding this matter.

8. We seek that the matter be heard in person to facilitate a greater level of discussion ....

9. The other two unions who are parties to the award have been listed as respondents to the dispute."

1. The matter came before me for compulsory conference on 6 June 2025.
2. On that day representatives for the Notifier and the First and Second Respondents appeared, however there was no appearance for the Third Respondent. I confirmed that the Second Respondent, the Local Government Engineers Association (LGEA) and Third Respondent, the Electrical Trades Union (ETU), were properly named as respondents, as they are parties to the existing Riverina Water County Council Enterprise Award 2022 (2022 Award) and represent workers covered by the Award, and so should be subject to any determination made by the Commission in respect of the dispute. However as expected, they generally have the same interest as the Notifier, rather than the First Respondent, Riverina Water County Council (Riverina Water), being the employer.
3. Riverina Water is a somewhat unique body. It is constituted under the Local Government Act 1993 and is governed by that Act, but it is not a local council as most people understand that concept. Rather, it is in the nature of a utilities provider. Specifically, it provides a public water supply to more than 77,000 people, with approximately 33,000 connections across four local government areas located in the Riverina area of New South Wales. It employs around 125 staff, most of whom are based at Riverina Water's water treatment facility at Wagga Wagga. Around 75-80 of those staff members are categorised as "outdoor staff", with the balance being "indoor staff".
4. For around nine years or so the terms and conditions of staff employed by Riverina Water have been governed by an enterprise award. Before that I understand, the terms and conditions of employment were set out in enterprise agreements. Over the past nine years each enterprise award has been made by consent, with each award having a term of three years.
5. The 2022 Award expired on 30 June 2025. The parties commenced discussions for a new enterprise award in February 2025. Unfortunately, as indicated in the Notification, by late May 2025 the parties had reached an impasse in their negotiations due to a dispute over the number of hours "outdoor staff" are required to work per week.
6. As is the case under the Local Government (State) Award 2023, which governs the terms and conditions of employment of most employees of local government in New South Wales, the outdoor (operational or field-based) staff at Riverina Water work a 38-hour week, while the indoor (office-based) staff work a 35-hour week.
7. The majority of the USU's members at Riverina Water are outdoor staff. The ETU also covers outdoor staff, however the LGEA's members are classified as indoor staff and so work a 35-hour week.
8. The USU's position, which Riverina Water contests, is that the outdoor staff are having to work three more hours a week to receive the same pay as indoor staff at an equivalent classification. At the very least the difference in hours is perceived by the outdoor staff as an inequity and it has created a sense of an "us and them" culture within the organisation.
9. The issue was raised when the 2022 Award was being negotiated. It was resolved at that time by Riverina Water agreeing to conduct a review into the "harmonisation" of hours to determine its impacts, with a view to considering implementing so-called "harmonised hours" in the 2025 Award.
10. To that end, Riverina Water commissioned a public sector advisory firm, Morrison Low, to review the potential impacts of harmonisation of hours. Morrison Low delivered their report in May 2024, and in June 2024 the Board of Riverina Water considered implementing a six-month trial of a 36-hour, 4 day working week for all staff. However, following a staff survey, the Board determined not to proceed with the trial in December 2024.
11. Consequently, the harmonisation of hours issue, along with the quantum of suitable pay increases and some other more minor issues, have been the focus of the negotiations for a new award.

1. At the compulsory conference on 6 June 2025 the parties who attended reached an in-principle agreement with respect to a proposed new award. However, that agreement was subject to the ETU, which was not represented at the conference, agreeing, and was subject to the members of each of the unions voting to approve the proposed new award.
2. On 13 June 2025 the Commission received correspondence from the USU advising that its members and the members of the ETU had voted down Riverina Water's offer and requesting that the Commission assist with further conciliation at Riverina Water's premises at Wagga Wagga. This request was supported by Riverina Water. Accordingly, a further conciliation was arranged to take place on 20 June 2025 at Wagga Wagga and I made a direction that the relevant delegates of each of the unions attend the conciliation.
3. Due to unforeseen circumstances the further conciliation ended up taking place on 30 June 2025 at Riverina Water's head office and water treatment plant at Wagga Wagga. While unnecessary to note for this decision, the staff afforded me a tour of the facility before the conciliation resumed, which greatly assisted my understanding of the work performed by both indoor and outdoor staff at Riverina Water.
4. The conciliation was successful, with the parties reaching agreement as to the terms of a proposed new award, subject to the parties finalising the wording of certain clauses, in particular a clause committing the parties to a review of Riverina Water's job evaluation system. The hours of work for indoor and outdoor staff is to remain unchanged.
5. The matter returned to the Commission for report back on 11 July 2025. At that time the parties advised that a consent application for a new award, supported by an affidavit pursuant to r 6.8 of the Industrial Relations Commission Rules 2022, would be filed shortly. On that day Mr Nassif for Riverina Water gave a commitment that Riverina Water would agree to the new award applying from 14 July 2025, even if the award was not made by that day.
6. An application for a new award was filed on 15 July 2025 (in the dispute proceeding), together with an affidavit of Emily Louise Tonacia, Acting Chief Executive Officer, affirmed on 14 July 2025, which annexed a marked-up version of the proposed new award.
7. For the reasons set out below, I propose to make the new award, by consent. The making of the new award resolves the dispute and accordingly I propose to order that the dispute proceedings be otherwise dismissed.

1. The proposed new award is to be known as the Riverina Water County Council Enterprise Award 2025 (2025 Award). It will replace the 2022 Award and will operate from 14 July 2025 until 30 June 2028.
2. As explained by Ms Tonacia, the 2025 Award:

"...provides for the changes to remuneration and conditions of employment highlighted by the following:

a. Wage increases of 15% over the life of the proposed Award;

b. An increase to the on-call allowance from $63.70 to $83.21 per day;

c. The extension of flexible work arrangements to all employees;

d. The introduction of a right to disconnect clause;

e. A clause committing the parties to a review of Council's job evaluation system;

f. An increase to rest periods following call outs or call backs;

g. The description of sick and carer's leave entitlements as hours rather than days;

h. The description of annual leave entitlements as hours rather than weeks;

i. The ability to take long service in periods of a day rather than a week;

j. An increase of supporting parent leave from 10 to 15 days (with 5 days to be taken from the employee's sick leave balance). This entitlement is to be taken at the time the employee's partner gives birth or at the time the couple adopt a child; and

k. A clause to extend salary sacrifice arrangements to other benefits as allowed for by legislations and by mutual agreement."

1. Ms Tonacia opined that the 2025 Award provides equal remuneration and other conditions of employment for men and women who are performing work of equal or comparable value at Riverina Water because:

"The proposed Award provides:

a. Equal rates of pay and allowances for men and women;

b. The same eligibility and selection criteria for employment for men and women for each position;

c. The same duties for men and women under each position;

d. Conditions of employment which ensure equal access to employment for men and women."

"The proposed Award contains clauses which can ensure equal remuneration and other conditions of employment for men and women as follows:

a. Clause 13(i)(i) of the proposed Award provides that term contract employees shall not be paid less than the salary system rate of pay set for the position.

b. Clause 14(vii)(a) of the proposed Award provides that casual employees engaged on a regular and systematic basis shall have access to annual assessments under Council's salary system.

c. Clause 16(iv) of the proposed Award provides that promotion to a classification, a higher grading, or accelerated progression shall be determined having regard for the duties, functions, responsibilities, skill requirements and work value principles.

d. Clause 56(iii) of the proposed Award provides that each position shall have an agreed job description which shall reflect the functions, duties and skill requirements of the position."

1. Ms Tonacia opined that the 2025 Award is in the public interest having regard to the factors in s 146(2) of the IR Act for the following reasons:

"Objects of the Act

16. The proposed Award is consistent with the objects in s. 3 of the Act for the following reasons:

a. Clause 4(a) of the proposed Award [Objectives] promotes the conduct of industrial relations that is fair and just in that the parties to the Award commit to establish rates of pay and conditions that are fair and equitable.

b. Clause 4(a) of the proposed Award [Objectives] promotes efficiency and productivity in that the parties to the Award are committed to co-operating positively to increase the productivity, structural efficiency and financial sustainability of Local Government.

c. Clause 7(a)(ii) of the proposed Award [Workplace Arrangements and Consultative Process] promotes efficiency and productivity by creating a consultative committee that will operate to positively co-operate in workplace reform to enhance efficiency and productivity of Riverina Water.

d. Clause 47(i) [Training] promotes efficiency and productivity by pursuing an ongoing commitment to education and training to increase the efficiency and productivity of the industry.

e. Clause 5 [Future Negotiations] the (sic) promotes participation in industrial relations by employees and employers at the enterprise level by requiring the parties to commence negotiations for a replacement enterprise award at least six months before the expiry of the proposed Award.

f. Clause 7(b) [Workplace Arrangements and Consultative Process] promotes participation in industrial relations by employees and employers at the enterprise level by stipulating the size and composition of the consultative committee to include representatives from all the relevant industrial organisations of employees.

g. Clause 4(b) [Objectives] of the proposed Award is an Anti-Discrimination clause that reflects the intention of the parties to the proposed Award to seek to achieve the object in 8.3(f) of the Act.

h. Clause 7(a) of the proposed Award [Workplace Arrangements and Consultative Process] encourages and facilitates co-operative workplace reform through a consultative process that is intended to positively co-operate in workplace reform.

i. Clause 19(i) [Flexibility for Work] provides for flexible arrangements designed to attract and retain skilled staff consistent with the object outlined at s. 3(i) of the Act.

Economy of New South Wales

47. It is expected that the creation of the proposed consent Award will have negligible impact upon the state of the economy of New South Wales. This is because the proposed Award will apply to less than 150 employees.

1. Pursuant to sub-principle 3.1(6) of the 2024-2025 Award Making Principles: State Wage Case 2024 (No 4) [2024] NSWIRComm 25; 337 IR 182, an award may be made without the application needing to be considered as an Arbitrated Case under Principle 9, where the application is consented to by the parties, and where the award otherwise complies with the requirements of the IR Act.
2. The parties identified on the party card, (maintained by the Registrar pursuant to r 6.7 of the Industrial Relation Commission Rules 2022), in relation to the 2022 Award are all named as parties to the Application. They have all consented to the making of the 2025 Award and that the 2025 Award is to rescind and replace the 2022 Award.
3. On the basis of the evidence given by Ms Tonacia and my own consideration of the terms of the 2025 Award and my knowledge of the negotiations giving rise to the consent award, I am satisfied that the 2025 Award provides for fair and reasonable conditions of employment of employees of Riverina Water and I congratulate the parties on reaching a resolution in respect the new award, without the need for arbitration.
4. Pursuant to s 23 of the IR Act, whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
5. While there is no evidence as to the ratio of women to men covered by the Award, on the basis of Ms Tonacia's uncontested evidence regarding the non-discriminatory provisions within the Award, I am satisfied that the proposed 2025 Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
6. The 2025 Award is to apply for three years effective from 14 July 2025. The application for the new award was filed on 15 July 2025. Section 15(3) of the IR Act provides:

(3) An award may be expressed to apply retrospectively, but not earlier than the date on which -

(a) application for the award was lodged with the Industrial Registrar, or

(b) the Commission itself initiated proceedings for the award, or

(c) the industrial dispute giving rise to the award was notified to the Commission.

1. As the Award is being made by consent and the Award sets conditions of employment for employees of a single employer, namely Riverina Water, the proposed retrospective commencement date of 14 July 2025 is permitted by s 15(4)(b) of the IR Act.
2. The 2025 Award includes a no-extra claims clause in the following terms:

"The parties to this Award agree not to pursue any additional or extra claims during the term of this Award except in accordance with Clause 6 - Enterprise Agreements."

"The parties to this Award recognise that enterprise agreements and/or Council agreements may be entered into for alternative provisions to those in this Award."

1. The clause is not ideal. It is not in the form of an undertaking to the Commission as envisaged by Award Making Principle 4 and does not define what constitutes a "Council agreement". I consider that the clause must be regarded as a commitment by the parties not to pursue claims for extra or reduced terms and conditions that would take effect during the nominal term of the 2025 Award, unless they reach an agreement for "alternative provisions" to those in the 2025 Award which can be recorded in an enterprise agreement approved by the Commission under Part 2 of the IR Act or in some other written agreement.
2. I accept that the 2025 Award will be in the public interest within the meaning of s 146(2)(a) and (b) of the IR Act for the reasons given by Ms Tonacia. While no evidence was given as to the effect the wage increases might have on the water rates payable by the customers of Riverina Water, the Commission is mindful that Riverina Water is bound by s 8A (1)(b) of the Local Government Act to carry out its functions in a way that provides the best possible value for residents and ratepayers, and by s 8B, to apply principles of sound financial management, including that council spending should be "responsible and sustainable, aligning general revenue and expenses." I note that relative to the public sector more broadly, the wage increases proposed over the life of the Award may be regarded as reasonably generous. Nevertheless, the Commission is entitled to assume that Riverina Water has met its obligations under the Local Government Act in providing its consent to the making of the 2025 Award.

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Riverina Water County Council Enterprise Award 2022 (393 IG 1351) is rescinded.

(2) Pursuant to s 10 of the Industrial Relations Act 1996, the Riverina Water County Council Enterprise Award 2025 is made with effect from 14 July 2025 in the form filed with the Application in Respect of an Industrial Instrument filed on 15 July 2025 and shall remain in force up until 30 June 2028.

(3) The proceeding is otherwise dismissed.