Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 �e" Award Variation; Unions NSW v Local Government NSW [2025] NSWIRComm 1051

"persons engaged in the industry of nursing as defined [in the Award] within the State of New South Wales, within the jurisdiction of the Private Hospital, Day Procedure Centre, Nursing Home, &c., Nurses' (State) Industrial Committee, which includes as part of its coverage the following:

Trained nurses, Trainees and Assistants in Nursing and all persons employed as nurses in the industry and calling of nursing and employed in or in connection with a residential aged care facility."

1. As the Fair Work Act 2009 (Cth) now covers employees in the private sector, the LG Nurses Award now only covers nurses, including trainees and assistant nurses, in residential aged care facilities run by local government.
2. The party card for the Award (maintained by the Registrar pursuant to r 6.7 of the Industrial Relation Commission Rules 2022) records that the persons affected by the Award are the NSWNMWA, LGNSW, Unions NSW and Aged & Community Care Providers Association Ltd. Neither Unions NSW, nor the Aged & Community Care Providers Association were named as parties to the Application, however the Commission received correspondence confirming their consent to the making of the proposed variations.
3. As already mentioned, the variation seeks to increase pay rates in line with those awarded in Stage 3 Tranche 1 of the Fair Work Commission's Aged Care Work Value Case. Mr Collier provided some background and information related to the Aged Care Work Value Case in his affidavit.
4. Between 2020 and 2024 the Fair Work Commission (FWC) heard the Aged Care Work Value Case. That case concerned whether minimum wages for aged care employees covered by three federal modern awards, namely the Aged Care Award, the Social, Community, Home Care and Disability Services Industry Award and the Nurses Award (collectively the Federal Aged Care Awards), should be varied to reflect the work value of the employees and to ensure equal remuneration of men and women workers for work of equal or comparable value. The proceedings arose out of a recommendation of the Royal Commission into Aged Care Quality and Safety.[1]
5. In November 2022 the FWC determined that the evidence established that the existing minimum rates did not properly compensate workers engaged in the provision of direct care to aged persons, in either residential facilities or in-home settings, for the value of the work performed and that an interim increase of 15% to modern award minimum wages applying to direct aged care workers was justified: Aged Care Award 2010 [2022] FWCFB 200; 319 IR 127.
6. On 21 February 2023, the FWC determined to increase modern award minimum wages by 15% for certain employees covered by the Federal Aged Care Awards from 30 June 2023: Aged Care Award 2010 [2023] FWCFB 40. These increases are referred to as the "Stage 2 Interim Increases".
7. The Stage 2 Interim Increases were funded by the Australian Government through the Australian National Aged Care Classification (AN-ACC) funding model. Although the FWC decisions directly affected only federal modern awards, the AN-ACC funding was also provided to local government aged care operators covered by the Category 3 Awards referred to in the State Wage Case 2024.
8. As part of the State Wage Case 2023 proceedings, LGNSW filed consent award variation applications to increase the minimum wages in both Category 3 Awards to reflect, as a composite increase, both the FWC's Stage 2 interim Increases (for direct care classifications) and the general increase in the FWC's Annual Wage Review 2022-23: Annual Wage Review 2022-23 [2023] FWCFB 3500; 323 IR 332. According to Mr Collier prior the State Wage Case 2023 agreement was reached between the parties to the LG Nurses Award on the appropriate matching of classification between the federal Nurses Award and the LG Nurses Award.
9. The consent applications were approved by a Full Bench of the Commission on 1 November 2023, with reasons for the decision published on 14 December 2023 in State Wage Case 2023 [2023] NSWIRComm 1121. In respect of the LG Nurses Award, the Full Bench made the following orders:

1. Pursuant to s 17 of the Act, the rates of pay for classifications in the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 for all classifications other than trainee classification are increased by percentages agreed between the parties, which range from 9.05% to 17.83%.

2. Pursuant to s 50 of the Act_,_ the Commission adopts the AWR 2023 as a National decision in relation to the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 for purposes other than the rates of pay for direct care classifications in aged care.

3. Pursuant to s 52 of the Act, the rates of pay for trainees and pay-related allowances are increased by 5.75%.

4. Orders 1 and 3 takes effect on and from the first full pay period commencing on or after 1 September 2023.

5. To give effect to Orders 1 to 4, the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 is varied in the terms stated in Annexure A to this order.

1. Between March and December 2024, the FWC made a series of decisions in Stage 3 of the Aged Care Work Value Case commencing with Aged Care Award 2010 [2024] FWCFB 150; 331 IR 137 delivered on 15 March 2024. In that decision the FWC determined that the Nursing Assistant classification contained in the federal Nurses Award should be excised from that award and placed within the Aged Care Award and the Social, Community, Home Care and Disability Services Industry Award and renamed "direct care employees" and their wages increased from 1 January 2025, with a further increase on 1 October 2025. The FWC also established certain benchmark rates for registered and enrolled nurses under the federal Nurses Award, but did not finalise the full classification structure for those nurses at that time.
2. On 6 December 2024 the FWC delivered its decision concerning the appropriate Stage 3 increase with respect to nurses, including the introduction of a new classification structure under the Nurses Award, to be phased-in across three, largely equal, tranches from the first full pay period on or after 1 March 2025, 1 October 2025 and 1 August 2026: Applications by Australian Nursing and Midwifery Federation [2024] FWCFB 452.
3. As with the Stage 2 Interim Increases, the Australian Government is providing financial assistance to assist in the payment of the Stage 3 increases. To assist in that process the Australian Government Department of Health and Aged Care issued two guidance documents in respect of the Stage 3 increases. One is titled "Aged Care Worker Wages - Guidance for Aged Care Providers on Stage 3 of the Fair Work Commission Aged Care Work Value Case" dated November 2024. The other is titled "Aged Care Nurses Wages - Guidance for aged care providers on the 6 December 2024 decision of the Fair Work Commission Aged Care Work Value Case." A copy of the two Guidance documents were annexed to Mr Collier's affidavit. Each Guidance document contains a set of Guidance Tables showing the changes in the various award rates for each award classification arising from the decisions of the FWC and the amount the Commonwealth government expects providers of residential aged care and home care packages to pass on to employees as a result of the FWC's decisions. Each Guidance document states:

"Employers are not limited to passing on these dollar amounts and may choose to pay over and above the amounts in the last column of the tables. Passing on funding allocated to support wage increases will help address long-term work value issues, improve gender equity, and contribute to the delivery of quality aged care services."

1. I understand that by agreeing to pay the Stage 3 increases, Local Governments with employees covered by the LG Nurses Award will be able to secure funding from the Australian Government.
2. Following the variations made to the LG Nurses Award in the State Wage Case 2023 and the FWC's decisions of 15 March 2024 and 6 December 2024, the parties have reached agreement as to classification matching and pay increases arising from those decisions. The "Assistant in Nursing" position in the LG Nurses Award is now matched to the "direct care employee" classifications in the federal Aged Care Award and those employees are to receive a pay increase from 1 January 2025 (with another scheduled for 1 October 2025). The remainder of the LG Nurses Award classifications have been matched to the now revised classifications in the federal Nurses Award and those employees are to receive a pay increase from 1 March 2025 (with two more scheduled on 1 October 2025 and 1 August 2026.) Annexed to Mr Collier's affidavit was a table setting out the classification matching and resultant proposed pay increases for each the classifications in the LG Nurses Award, as agreed between the parties.
3. The proposed variation to the LG Nurses Award implements the pay increases for 1 January 2025 and 1 March 2025. The parties intend to discuss the further increases scheduled for 1 October 2025 (for all classifications under the Award) and presumably for the 1 August 2026 increase, following the release of the relevant funding guidance materials by the Commonwealth government.
4. Mr Collier opined in his Affidavit that the proposed variations to the Award provides for equal remuneration and other conditions of employment for male and female employees doing work of equal and comparable value because:

"Firstly, the wage increases awarded [pursuant to] the work value case are addressed to, in part, remedying the longstanding gendered undervaluing of aged care work.

Secondly, the rates proposed in the consent application make no distinction between men and women, and apply on a gender neutral basis for employees performing the same or substantially similar duties."

17 Variation or rescission of award

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only -

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

1. Further, 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 varied 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 propose that the variations to the LG Nurses Award are to apply from the first pay period commencing on and from 1 January 2025, with wage increases applying either from that date or from the first full pay period on and from 1 March 2025, depending on the classification, both dates being earlier than the date of the Application. Pursuant to s 15(4) (as applied by s 17(2) of the IR Act) the Commission may order that a variation is to apply retrospectively from a date, specified in the award, that is earlier than any date referred to in sub-s 15(3), if the parties consent and if the award sets conditions of employment for employees of a single employer or for employees of two or more associated employers.
3. The parties identified on the party card have all consented to the proposed variation of the LG Nurses Award.
4. No evidence or argument was presented to me as to whether the employers of the employees covered by the LG Nurses Award, being "local government" are a "single employer" or "associated employers", but I assume that that they are one or the other (more likely the later) and that there is no impediment to me ordering that the variations in rates are to apply from 1 January 2025 and 1 March 2025 respectively.
5. On the basis of the evidence given by Mr Collier, and in particular that the bases for the increase in pay rates are the decisions made by the FWC in the Aged Care Work Value case, I am satisfied that the variation will set fair and reasonable rates of pay. I congratulate the parties on reaching a resolution in respect of the matching of classifications with the relevant federal modern Awards, so as to determine the minimum rates to be paid to the employees covered by the LG Nurses Award, without the need for arbitration.
6. While there is no evidence as to the ratio of women to men covered by the Award, on the basis of Mr Collier's evidence and the Aged Care Work Value case decisions, it may be readily assumed that the workforce is predominantly female. However, in light of the adoption of increases which reflect those determined by the FWC to address, inter alia, gender undervaluation, combined with the non-discriminatory application of the provisions of the LG Nurses Award to men and women, I am satisfied that the proposed varied LG Nurses Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
7. In determining whether to make the variation sought the Commission must have regard to the public interest and for that purpose must have regarding to the state of the economy of New South Wales and the likely effect the variation would have on that economy: s 146(2)(b) of the IR Act. No evidence or other guidance was provided by the parties in relation to this matter. Drawing on evidence that has been filed in the State Wage Case 2024 minimum rates review currently before me, I am aware that as at 3 March 2025 there were only 300 employees, employed by nine local councils, who were covered by both of the Category 3 Awards and that it was expected that by the end of March this number would halve due to the transition of employees to a private aged care provider. Given the small cohort I do not consider the variation will have any effect, one way or the other, on the economy of New South Wales.
8. Paying due regard to the fact that this is a consent application, providing for an immediate increase to the remuneration of employees who according to the FWC have been undervalued, including by reason of gender, I am satisfied that it is in the public interest to vary the Award in the manner sought by the Application.
9. I note that the nominal term of the LG Nurses Award expired on 7 October 2022, however it remains in force until rescinded by the Commission: s 16(1) of the IR Act and cl 53(i) of the LG Nurses Award. As the consent Application is to vary the existing Award, the name of the Award, will remain unchanged.
10. NSWNMWA filed a draft of the entire varied Award, in clean and marked up versions, together with a variation schedule, marked "Schedule A", showing only the proposed variation. The variation is expressed as follows:

"1. Delete Part B MONETARY RATES Table 1 - Salaries of the award published 11 February 2022 (391 I.G. 411) and reprinted on 23 May 2025 (397 I.G. 2017), and insert in lieu thereof the following:

PART B

MONETARY RATES

Table 1 - Salaries

[Table not reproduced]

2. This variation shall take effect from the first full pay period commencing on and from 1 January 2025."

1. The variation does not propose a variation to cl 53(iii) which reads:

"The rates of pay in this award include the adjustments payable under the State Wage Case 2024. These adjustments may be offset any or both:

(a) any equivalent overaward payments, and

(b) Award wage increases other than State Wage Case adjustments.

The rates of pay and allowances in Part B, Monetary Rates, take effect from the first full pay period on or after 1 September 2024."

1. To avoid confusion I consider the last sentence of cl 53(iii) should be amended to read:

"The rates of pay and allowances in Part B, Monetary Rates, take effect from the first full pay period indicated in the table."

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 is varied as follows:

(a) Delete Part B Monetary Rates Table 1 - Salaries, of the Award published 11 February 2022 (391 I.G. 411) and reprinted on 23 May 2025 (397 I.G. 2017), and insert in lieu thereof Part B Monetary Rates Table 1 - Salaries, as set out in the document filed on 15 July 2025 and headed Schedule A.

(b) The final sentence in cl 53(iii) should be amended to read:

"The rates of pay and allowances in Part B, Monetary Rates, take effect from the first full pay period indicated in the table."

(2) The variations shall take effect from the first full pay period commencing on and from 1 January 2025.

(3) The parties are directed to file a Word version of the consolidated Award as varied, by 28 July 2025.

(4) In light of the variation made to the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 and the Local Government, Aged, Disability and Home Care (State) Award, dispute proceedings no. 2024/483819 is dismissed by consent.

[1] Royal Commission into Aged Care Quality and Safety, Care Dignity and Respect (Final Report, March 2021)