Port Stephens Council Enterprise Agreement 2025-2028 [2025] NSWIRComm 1053 (21 July 2025)

1. Part 2 of Ch 2 of the Act provides for the making and approval of enterprise agreements. The relevant legislative provisions and principles in respect of Div 2 of Pt 2 of Ch 2 were set out by the President of the Commission, his Honour Justice Taylor, in State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8. At [8], his Honour stated:

(1) the requirements of s 35 have been met, principally, that the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards: s 35(1)(b);

(2) the agreement can be approved consistent with the Principles for Approval of Enterprise Agreements ("Principles"), which have been set pursuant to s 33, unless the Commission is satisfied that any departure from those Principles would not prejudice the interests of any of the parties to the agreement: s 35(3). The Full Bench last reviewed the Principles on 23 February 2022 in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. The current Principles set by the Full Bench are in Annexure A to that decision;

(3) in circumstances where employees are parties to the Agreement the special requirements of s 36 are met; and

(4) the provisions of s 37 which addresses the process of conducting secret ballots for the approval of enterprise agreements have been met."

1. The State Super Enterprise Agreement 2024-2027 decision contains a helpful summary and analysis of the requirements for parties seeking the approval of enterprise agreements by the Commission, including a checklist of issues to address and consider at [88] ("checklist").
2. The parties did not file a completed checklist with their material. However, in satisfying myself that the Agreement complies with all of the necessary statutory tests and the Principles set by the Commission, and that I should approve the Agreement, I have considered the filed material against the checklist.

The Application and materials in support of approval

(1) a Statement of Particulars appearing as Schedule 1 of the Application;

(2) affidavits of:

(a) Stacey Irwin, People and Culture Manager of the Council, affirmed 19 June 2025, deposing to amongst other things:

(i) a Comparison Statement between the Local Government (State) Award 2023 and the Agreement in response to Rule 6.9(2)(b) of the Industrial Relations Commission Rules in the form of a table annexed as Annexure A;

(ii) the additional benefits offered by the Agreement over the Award: par 11;

(iii) the timeline of the mutual gains bargaining and negotiations commencing on 3 September 2024: par 13;

(iv) information noting that the Agreement does not displace the skills-based structure for determining remuneration established at clauses 6-8 of the Award, ensuring equal remuneration is provided for men and women doing work of equal and comparable value: par 8;

(v) steps undertaken by her and others at the Executive and Management level of Council in relation to staff engagement and consultation and communications in relation to the Agreement: par 14; and

(vi) the Council understands the effect of the Agreement and has not entered into it under duress: pars 16-17.

(b) Danielle Kelly, an Organiser employed by the USU, affirmed 18 July 2025, deposing to amongst other things:

(i) a comparison of key conditions under the Agreement which are different changes from the conditions of employment under the Local Government (State) Award 2023 in the form of a table: par 14 and Annexure 1;

(ii) the USU's involvement in mutual gains bargaining and other negotiations for the Agreement: par 12;

(iii) her regular communication with USU members: par 6;

(iv) at various USU mass members meetings and site visits convened by her USU members voted unanimously in favour of the Agreement: par 15.

(c) Gordon Brock, an industrial relations consultant engaged by the LGEA, and formerly an official of the LGEA, deposing to amongst other things:

(i) the LGEA's involvement in mutual gains bargaining and other negotiations for the Agreement: pars 5-8;

(ii) regular communication with LGEA members: par 5;

(iii) circumstances of a meeting on 19 May 2025 to discuss the Agreement, attended by 70% of the LGEA membership: par 9;

(iv) 67% of the LGEA membership participated in the ballot which took place between 20 May 2025 and 30 May 2025 with all those voting to approve the Agreement: par 11; and

(v) the LGEA's consent to the making of the Agreement: par 12.

(d) Ian Robertson, Secretary of depa deposing to amongst other things:

(i) the depa delegate at the Council (later identified as Stephen Poulter), is very experienced and attended the meetings referred to in par 15 of Ms Irwin's affidavit: par 4;

(ii) the Agreement was put to a vote of depa's eight members who voted unanimously in favour of it: par 6;

(iii) his view that the Agreement satisfies the legislative obligations: par 8 and there was no duress applied during the negotiation process: par 7.

1. Based on my review of the Agreement and its terms and effect, and the evidence tendered by the parties, I am satisfied that:

(1) the Agreement covers all employees of Council, except the General Manager employed by the Council (see cl 1.4);

(2) regulates totally the terms and conditions of employment for those employees covered by the Agreement (see cl 1.5);

(3) is for a period of three years (cl 1.3);

(4) the Agreement does not, on balance, provide a net detriment to employees when compared with the aggregate package of conditions of employment which would otherwise apply under the Award: see in particular Annexure A to Ms Irwin's affidavit and also Annexure 1 to Ms Kelly's affidavit;

(5) the parties understand the effect of the Agreement and have not entered into it under duress; and

(6) the Agreement contains a dispute resolution process (cl 68 - Workplace Issues).

1. I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement complies with all relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW) and s 33 of the Act and the principles set by the Commission in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005.
2. I am satisfied that I should approve the Agreement and rescind the existing agreement, the Port Stephens Council Enterprise Agreement 2022-2025, EA 21/08.

(1) the Port Stephens Council Enterprise Agreement 2025-2028 is approved in accordance with s 35 of the Industrial Relations Act 1996 and will operate from 1 July 2025 and remain in force for a period of three years; and

(2) the Port Stephens Council Enterprise Agreement 2022-2025, EA 21/08, is rescinded pursuant to s 44 of the Industrial Relations Act 1996.

21 July 2025 - Minor amendment made - 'headnote' removed

22 July 2025 - Minor amendment - typographical error in [13]